E 469 

.P25 
Copy 1 



P25 
'Opy 1 



INTERNATIONAL LAW. 



CASE OP THE TRENT 



Capture and Surrender of Mason and Slidell. 



By JOEL PARKER 



CAMBRIDGE: 
WELCH, BIGELOW, AND COMPANY 

PRINTERS TO THE UNIVERSITY. 

18 6 2. 



Ii\TERNATIONAL LAW 



CASE OF THE TRENT. 



Capture and Surrender of Mason and Slidell. 



By JOEL PARKER 



CAMBRIDGE: 
WELCH, BIGELOW, AND COMPANY, 

PKINTERS TO THE UNIVEESITT. 

18 6 2. 



e 



v\, c, 



Memorandum. — The following Article, intended for the April number of the 
North American Review, but not finished in season, was completed in that month, 
and printed for the next number. This will serve to explain why certain matters 
appear in notes which, if it had been written at a later date, might have found a 
place in the text, and why its appearance in its present form is delayed until July. 

The substance of the legal argument, on the facts then existing, was stated in a 
Lecture delivered to the students in the Law School of Harvard (/ollege, in the 
course of the author's duties as Royall Professor of Law, January 17, 1862. 

Cambridge, 3Iay 1, 1862. 



i 






INTERNATIONAL LAW. 



1. Correspondence relative to the Case of Messrs. Mason and 
Slidell. Pub. Doc. 

2. Papers relating to Foreign Affairs, accompanying the Pres- 
ident's Message to Congress at the Opening of its Session 
in December, 1861. Pub. Doc. 

3. Speech of Senator Sumner, delivered in the Senate, Janu- 
ary 9, 1862. Washington, D. C. : Scammell & Co. 

4. The Trent Affair. The remaining Despatches. Boston 
Daily Journal, January, 1862. 

5. Additional Despatches on the Trent Case. Boston Daily 
Journal, February 12, 1862. 

6. Opinion of M. d'Hautefeuille. New York Times, Janu- 
ary 4, 1862. 

The affair of the Trent is settled so far as immediate re- 
sults are involved. Messrs. Mason and Slidell have been 
delivered up to Lord Lyons, and have reached their destina- 
tion by the way of St. Thomas and Southampton. There has 
been no war with Great Britain, no humiliating surrender, 
no apology, no ovation, nor any great manifestations of re- 
joicing among the people of England. The most unkind cut 
of all is the declaration of the London Times that Great 
Britain would have done as much for two negroes ; as she 
might have done with much more propriety if the United 



States had made a seizure on board the Trent of that de- 
scription. 

In the mean time no principles of international law have 
been settled in relation to the rights of belligerents and neu- 
trals. The demand is couched in the most general terms, 
ignoring all the particular circumstances upon which the seiz- 
ure was made, and which were supposed by Captain Wilkes to 
justify it. It is acceded to with a substantial declaration that 
the act was justifiable but for the neglect to bring the vessel 
in for adjudication ; and the surrender is made on account 
of this omission, or because the United States long ago con- 
tended for certain doctrines in relation to neutral rights, 
which Great Britain strenuously resisted, but which she is 
supposed to sustain by this demand ; — it does not appear to be 
quite certain upon which ground it is placed. At the same 
time it is declared, that, if the safety of the Union required the 
detention of the captured persons, it would be the right and 
duty of the government to detain them ; but the effectual 
check and waning proportions of the existing insurrection, as 
well as the comparative unimportance of the captured persons 
themselves, happily forbid a resort to that defence. 

Earl Russell replies to this, that the neglect to send in the 
Trent was by no means the sole ground of the demand ; he 
does not admit that Great Britain has abandoned any of her 
ancient doctrines, and he informs Mr. Seward " that Great 
Britain could not have submitted to the perpetration of that 
wrong, however flourishing might have been the insurrection 
in the South, and however important the persons captured 
might have been." 

How far this assertion of the Secretary of State may be 
considered as an admission that Great Britain was justifiable 
or excusable in her claim of a right to impress her seamen 
when found on board of our vessels, a claim which it was 
attempted to sustain by the plea of necessity, and which, how- 



ever shaken, has never been formally abandoned ; and a fur- 
ther admission that the adoption of the act of McNab, in 
invading our territory and burning the steamer Caroline, 
(which also it was attempted to justify by this same necessity, 
and which has never been atoned for,) has a like justification 
or excuse ; and how far, on the other hand. Earl Russell's reply, 
that Great Britain would no.t have admitted the safety of the 
Union to be an excuse for the capture and detention, however 
flourishing might have been the insurrection in the South, 
may be regarded as a concession on his part that Great 
Britain was entirely wrong when she alleged necessity as a 
plea for impressment in the one case, and for the violation of 
neutral territory and the burning of the steamer in the other, — 
are matters which remain for diplomatic discussion whenever 
some new transaction shall require it. 

As the diplomatic correspondence has been of no avail to 
settle any principles of international law, but has rather left 
confusion worse confounded, we propose to follow the discus- 
sion of those principles somewhat further. Neither the cor- 
respondence nor subsequent reflection upon the subject has at 
all shaken our confidence in the opinions which we expressed 
in the article in our number for January, upon " The Foreign 
and Domestic Relations of the United States." 

For the right understanding of the subject, we inquire, in 
the first place. What is to be understood by international law, 
and from what sources is it derived ? 

International law has been defined by Mr. Wildman to be 
" the customary law which determines the rights and regu- 
lates the intercourse of independent states in peace and war." 
Sir William Scott (3 Rob. Ad. Reports, 326) remarks, that it 
was a law " made up of a good deal of complex reasoning, 
though derived from very simple rules, and altogether com- 
posing a pretty artificial system." The British government 
have said that it is " founded upon justice, equity, conven- 



ience, and the reason of the thing, and confirmed by long 
usage." See 1 Phill. Int. Law, [15] 55. Dr. Phillimore 
states that 

" Analogy has great influence in the decision of international as well 
as municipal tribunals ; that is to say, the application of the principle 
of a rule which has been adopted in certain former cases to govern 
others yet undetermined." — 1 Int. Law, [35] 68. 

The sources of international law, as set forth by the very 
learned jurist last cited, are the Divine law natural and re- 
vealed, reason, and the consent of nations. He says : — 

"The obligations of natural and revealed law exist independently 
of the consent of men or nations, and although the latter acknowledge 
no superior upon earth, they nevertheless owe obedience to the laws 
which they have agreed to prescribe to themselves, as the rules of their 

intercourse in peace and war This consent is expressed in 

two ways: 1. It is openly expressed by being embodied in positive 
conventions or treaties. 2. It is tacitly expressed by long usage, prac- 
tice, custom." — Ibid., [37] 69. 

Speaking of the repositories and evidences of the consent 
of nations, the same author enumerates history, the contents 
of treaties, proclamations or manifestoes issued by the gov- 
ernments of states to the subjects of them upon the breaking 
out of war ; and he says of the latter, " These public docu- 
ments furnish, at all events, decisive evidence against any 
state which afterwards departs from the principles which it 
has thus deliberately and solemnly invoked." {Ibid., [50] 
78.) He adduces the decisions of prize courts, and of the tri- 
bunals of international law, as an evidence of the consent of 
nations, and in that connection takes occasion to refer to the 
judgments of Lord Stowell (Sir William Scott), and to the 
strong commendations bestowed upon them by Chancellor 
Kent and Dr. Story, quoting the language of the latter as 
follows : — 



" How few have read with becoming reverence and zeal the decis- 
ions of that splendid jurist, — the ornament, I will not say, of his own 
age or country, but of all ages and all countries ; the intrepid supporter 
equally of belligerent and neutral rights ; the pure and spotless magis- 
trate of nations, who has administered the dictates of universal juris- 
prudence with so much dignity and discretion in the prize and instance 
courts of England ! — Need I pronounce the name of Sir William 
Scott?" — Ibid., [57] 82. 

The author adds, also, the concurrent testimony of great 
writers upon international jurisprudence as another evidence 
of the consent of nations, for which he cites Wheaton on In- 
ternational Law. 

Prom this examination of the general character, sources, 
and evidence of international law, it is quite apparent that in 
many instances the rules which must determine the rights, 
and which should govern the intercourse, of two nations, may 
be applicable to those nations alone, while in other cases the 
rights may be dependent upon principles of a more enlarged 
application, and the intercourse be regulated by usages which 
have the evidence of a much more general consent. 

It hardly needs an argument to show that the questions aris- 
ing in this case of the Trent are to be considered and deter- 
mined as questions wholly between the United States and 
Great Britain, and upon the principles and usages which have 
been promulgated, sanctioned, acknowledged, and claimed as 
suitable and proper principles to determine the rights and to 
regulate the intercourse of those two nations ; and not, mainly, 
by any principles which are of general authority and applica- 
tion throughout Christendom. 

Clearly the questions at issue cannot be determined by any 
principles of natural or revealed law. The rights of war, and 
the proper mode of carrying on a war, so far as coercion by 
force, gunpowder, shot, and shell are concerned, are generally 
regulated (if regulated) by the usages of mankind, rather 



8 

than by natural or revealed religion, or even by treaty stipula- 
tions. This must almost necessarily be the case, each occa- 
sion for hostilities depending upon the peculiar circumstances 
attending the offence which gives rise to them, and the modes 
by which the hostilities may be rendered most effective. The 
general object of offensive warfare is to do injury to the ene- 
my, and thereby compel him to submit to what is required of 
him. 

Even the general laws of war may not suffice to determine 
the rights of the belligerent and of the neutral in this case, 
because the general principles regulating war do not reach the 
special circumstances of the case, as one arising between the 
United States and Great Britain. Not that there is any treaty 
stipulation between the two countries which determines their 
respective rights in reference to this matter. No treaty stipu- 
lation exists. Great Britain expressly refused to accede to 
certain principles which the United States desired to incorpo- 
rate into a treaty, and which, if incorporated, might have had 
an essential bearing upon some of the questions involved in 
this case. 

For this very reason, however, no treaty stipulation between 
the United States and any other nation can be regarded as 
governing this case, or even as having a legitimate bearing on 
the questions arising in it. Mr. Sumner, in the speech the 
title of which we have placed at the head of this article, has, 
with a great, and for the purposes of this case useless dili- 
gence, made a collection of the varying expressions of our 
treaty stipulations with other powers. But the most which 
these treaties can serve to show is, either that the principles of 
international law in relation to the subject-matter were un- 
settled, and that the parties to the treaty desired to have them 
made certain, in accordance with what they deemed to be the 
true principle ; or that by the rules of law, as generally re- 
ceived, the right or usage was otherwise than as settled by the 



9 

treaty stipulation, and that the parties to the treaty were de- 
sirous of having the matter placed upon a different, and, as 
they deemed it, a better basis. In either view, the treaties 
furnish no argument whatever against the positions assumed 
by Captain Wilkes. On the latter supposition, the treaties, so 
far from furnishing an argument against his proceedings, 
would, as between the United States and Great Britain, fur- 
nish very conclusive evidence in his favor. 

So in relation to the intervention of France, and other pow- 
ers of Europe, by the expression of their hopes that the Unit- 
ed States would accede to the demand of Great Britain ; and 
in reference also to M. Thouvenel's suggestion, that the seiz- 
ure was erroneous, and that the United States would be in the 
wrong if they insisted upon holding the prisoners. The inter- 
vention was valuable as an evidence of courtesy and friendly 
relations between those powers and the United States, shown 
by the expression of their desire that we should not enter into 
a conflict with Great Britain in which they could not sustain 
our right on their principles. But unless it may be shown that 
their principles are those upon which Great Britain has acted 
toward the United States, or at least that they are the princi- 
ples which at the time were the governing principles as between 
the United States and Great Britain, those interventions and 
representations can have no tendency to show the right or the 
wrong, as between the parties to the matter at issue. 

This is made especially apparent by the despatch from M. 
Thouvenel to M. Mercier, which was read to Mr. Secretary 
Seward, in which M. Thouvenel argues the question upon the 
rules of law as they are held by France, and upon the stipula- 
tions of the treaties between the United States and France ; 
whereas the principles maintained by France in relation to 
neutral rights are not acknowledged by Great Britain, and the 
United States have no treaty with her of the same character 
in this respect, as they have with France. 
2 



10 

So, again, in relation to the writings of foreign publicists. 
Although undoubtedly such writings are evidence of the prin- 
ciples of international law, the evidence may be limited to the 
usages and customs of some nations, and not of others. Such 
writings cannot avail as evidence in this case, unless they rec- 
ognize the principles asserted by Great Britain, and assented 
to or acquiesced in by the United States. This is particularly 
true of M. Hautefeuille, who has made himself somewhat im- 
pertinently busy in reference not so much to the principles 
which govern the case, as in denunciation and vituperation of 
the United States. He disagrees with Wheaton, and rejects 
entirely the authority of Lord Stowell, whose character as a 
jurist has not only received, as we have seen, very strong 
commendation in this country, but the most of whose decis- 
ions were regarded as authoritative expositions of the rights 
of belligerents against neutrals long before M. Hautefeuille 
was even heard of here. It is certainly something more 
than modest assurance when M. Hautefeuille, ignoring the 
authority of a judge who has decreed the confiscation of mil- 
lions, perhaps, of American property, for violation of neutral- 
ity, and to whose decrees and judgments the sufferers and 
the government submitted, if not without a murmur, at least 
without a resort to arms for that cause, — ignoring also the 
fact that American publicists had lauded his great learning 
and eminent character, recognized his authority, and promul- 
gated his principles as the governing, if not the best, princi- 
ples of international law, — presumes to denounce the pro- 
ceedings of Captain Wilkes, and to censure the United States 
because they have not conducted in relation to an English 
vessel according to his standard in regard to neutral rights. 

It is perhaps not necessary to our present purpose, but we 
take occasion to say, that, upon any open question, not settled 
by agreement or consent between the two nations, but upon 
which each has maintained an opinion adverse to that of the 



11 

other, either has the right, at any time, to act upon the prin- 
ciple contended for by the other, and thus to express an as- 
sent to it, if there has not previously been something to show 
a withdrawal. This is the usual mode by which assent is 
given by implication, and in relation to such subjects it is 
sufficient if the assent is expressed when the occasion arises 
for it. 

We proceed to inquire into certain principles of interna- 
tional law as held by Great Britain, and as recognized by the 
United States, their judicial tribunals and jurists, which may 
apply directly, or by analogy, to the case of the Trent. 

The convenience or necessity of a belligerent has sometimes 
led to the violation of neutral territory, as in the case of the 
burning of the steamer Caroline within the limits of the State 
of New York ; and the power of the belligerent has occasion- 
ally been sufficient to resist a claim for redress. In other 
words, the party committing the wrong, in the language 
which the London Times lately applied to Great Britain, has 
" fought it through," instead of doing justice. But such a 
course does not settle the principles which are applicable to 
future cases. 

The main difficulties in determining the rights of the bel- 
ligerent and the neutral have arisen in relation to the vessels 
of the latter navigating the open sea, which is the highway 
of all nations. It has been asserted by some, that a vessel on 
the ocean is to be regarded as a part of the territory of the 
government to which she belongs ; but this position cannot be 
maintained, either in the nature of the thing, or according to 
the received rules of law. If there is any similarity between 
the two, it is only of a limited character. The term territory 
is sometimes applied to a vessel with the meaning merely 
that she is tinder the jurisdiction and laws of the nation to 
which she belongs, but with no intention to assert an immu- 
nity from search and seizure of the ship for violation of neu- 



12 

trality. Such was evidently the use of the term by Mr. Web- 
ster in his negotiation with Lord Ashburton. The belligerent 
and the neutral are alike entitled to pass and repass upon the 
ocean, and there is no territory there. The belligerent has 
the right to carry on his hostilities against his enemy wher- 
ever he can find him on the high seas, and the neutral char- 
acter of a vessel there cannot be known except upon inquiry, 
for which purpose visit is allowed ; — whereas neutral terri- 
tory manifests itself, is known, and is to be respected with- 
out visit, search, or inquiry, except upon evidence of a vio- 
lation of neutrality. 

In an article on the affair of the Trent, in the February 
number of the London Law Magazine and Law Review, — the 
tone and temper of which are in marked contrast with the 
frothy and malignant issues of Blackwood, the Edinburgh, the 
North British, and even of the Christian Observer,* — it is 
stated that, in a paper upon the subject read by Mr. C. Clark 
before the Juridical Society, he maintained as a first propo- 
sition, " that a ship is, as a rule, part of the soil of the coun- 
try to which it belongs." In a subsequent part of the paper 
he said that the rule that each nation claims jurisdiction over 
its own vessels at sea depends on the principle that every 

* The January number of the Observer betrays its ignorance of American affairs 
by speaking of "Lord Lyons, the British Ambassador at New York," and airs its 
vocabulary by a liberal utterance about " preposterous arrogance," " ridiculous pride," 
" national vanity," " arrogance and bluster," " contemptuous disregard of the rights 
of other nations," &c., &c., and cloaks all this vituperation of the United States un- 
der a sanctimonious assumption of the right of Christian rebuke. 

Commenting on the aflfiiir of the Trent, the Observer speaks of " a display of vio- 
lence towards Miss Slidell, which might have, and probably would have, terminated 
in bloodshed, but for the heroic conduct of the English commander, who threw him- 
self between her and the bayonets of the marines." Qucere, on which side was the 
danger of bloodshed 1 If Commander Williams's story about MisS' Slidell's conduct 
toward Lieutenant Fairfax were entitled to any credence, it would seem that the 
danger was on the part of the marines, and that they must have presented their bay- 
onets (if presented) in self-defence. 



13 

vessel is part of the state to which it belongs ; and he adds : 
" This principle I am prepared to maintain, and must do so, 
for it will become of much importance in a future stage of 
this discussion." But he certainly does not succeed in ob- 
viating the objections of Mr. Manning to that doctrine, in his 
Commentaries on the Law of Nations, which Mr. Clark cites 
and attempts to controvert ; and assuredly it is no more ne- 
cessary, in order to substantiate a claim to jurisdiction over 
a vessel at sea, to maintain that it is part of the soil, or even 
a part of the state claiming jurisdiction, than it is necessary, 
in order to show a title to a carriage running upon the high- 
way, and a right to govern its motions, to show that the car- 
riage is part of the real estate of the claimant. 

Mr. Manning says : " Now, no nation has jurisdiction over 
the territory of another nation. But as soon as a merchant- 
ship comes into the harbor of a state to which she does not be- 
long, she becomes subject to the jurisdiction of this latter state. 
This shows that a merchant-ship cannot be considered part of 
the territory of her state ; for if she possesses this character 
at any time, she must possess it at all times." (p. 210.) This 
alone would seem to be conclusive of the argument, without 
reference to the other cogent reasons offered by Mr. Manning 
in support of his objection to the doctrine. How is it that the 
character of the ship in this respect can change upon her en- 
trance into the port of another nation, so that the part of the 
soil, or part of the state, which she constituted, has become de- 
tached from the state to which she belongs, but is annexed 
again the moment she gets out of the port ? If the right of 
jurisdiction proves the ship to be part of the soil or state, it 
would seem to show that, upon entering the port of another 
nation, she had become part of the soil or state there. The 
proposition, -therefore, proves too much. Mr. Clark admits 
that his rule is subject to certain exceptions, but in fact it 
is all exceptions. There is no particular in which the vessel 



14 

can, with any just reason, be regarded as part of the territory. 
The proposition is, at best, but a mere fiction, for the purpose 
of asserting a jurisdiction over the ship while on the high seas, 
and a very unnecessary fiction for that purpose.* 

There has been much less difference of opinion respecting 
the rights of belligerents, as against each other, than has ex- 
isted in relation to their rights, as their warlike operations 
may affect, directly or indirectly, those nations which, having 
no interest in the contest, not only desire to remain neutral, 
but to avail themselves of all the advantages of trade and 
commercial intercourse to which, but for the hostilities, they 
would be entitled with each of the belligerents. 

The neutral nationality of a vessel being established, there 
is still no assurance of the observance of the actual neutrality 
which is incumbent on those who control the ship. The 
" greedy merchants who care not how things go, provided 

* In a recent debate in the House of Commons on a resolution offered by Mr. 
Horsfall, " That the present state of International Maritime Law, as affecting the 
rights of belligerents and neutrals, is ill-defined and unsatisfactory, and calls for the 
early attention of Her Majesty's government," Lord Palmerston said : " We have 
lately maintained, at the risk of war, that a merchant-ship at sea is a part of our 
territory, that that territory cannot be violated with impunity, that, therefore, indi- 
viduals cannot be taken out of a merchantmari belonging to a neutral country. The same 
principle may be said to apply to goods as well as men, and if it be granted, as we 
do grant, that a belligerent has no right to take out of a neutral ship persons icho are ene- 
mies, so also it follows that the neutral must always be respected, and in the case 
even of enemy's property on board ought not to be violated." — If this is what 
was maintained, and is admitted, Earl Russell might have spared himself the la- 
bor of the greater portion of his despatch in reply to Mr. Seward, upon which 
we have commented at large in a subsequent part of this article. It is beyond 
question that there is no contraband of war within a neutral territory, nor any right 
to capture enemies of any sort within such territory, unless they use it for the 
purposes of active and immediate hostilities against the belligerent. And it is 
equally clear that the enemy's despatches, when within neutral territory, are not 
subject to capture. The whole matter in controversy would be ended at once on 
such a principle ; and we need not talk about, what would be an idle, as well as a 
ridiculous question, to wit, whether a journey of neutral territory from one neutral 
port to another neutral port would vary the rights of the parties. 



15 

they can satisfy their thirst of gain," pay little regard to proc- 
lamations of strict neutrality, so long as large profits attend a 
violation of it by the transportation of contraband goods, and 
profits may also be derived from the carriage of goods belong- 
ing to the citizens or subjects of the belligerent nations. This 
has led to the admission of a right of search, not to be exer- 
cised, we think, in cases where no violation of neutrality can 
reasonably be supposed to exist, but to which the neutral ves- 
sel should submit without objection in all cases where it may 
be rightfully exercised. This search, according to the general 
principle as laid down by English and American writers, may 
be for the purpose of capturing the goods of the enemy found 
on board, which, if not contraband of war, may be carried 
without a violation of neutrality, and without subjecting the 
vessel to confiscation, although the goods themselves are liable 
to capture.* 

In the war in 1855 between Great Britain and France on 
the one part, and Russia on the other. Great Britain waived 
for the time her right to capture enemy's goods in neutral 
vessels, but she took good care to limit the waiver to that 
occasion. The language of Her Majesty's proclamation 
was, — 

" To preserve the commerce of neutrals from all unnecessary ob- 
struction, Her Majesty is willing, for the present, to waive a fart of the 
helUgerent rights appertaining to her by the Law of Nations 

" It is impossible for Her Majesty to forego the exercise of her right 
of seizing articles contraband of war, and of preventing neutrals from 
bearing the enemy's despatches ; and she must maintain the right of a 
belligerent to prevent neutrals from breaking any effective blockade 
which may be established with an adequate force against the enemy's 
forts, harbors, or coasts 

" But Her Majesty will waive the right of seizing enemy's property 

* This is admitted to be a general principle of international law, of very ancient 
date, upon which any nation may act unless restrained by treaty or agreement. 



16 

laden on board a neutral vessel, unless it be contraband of war." — 3 
Phill., [294] 238* 

Right of search may also be exercised for the capture of 
goods the property of the neutral, if they are contraband of 
war. In the absence of treaty stipulations one of the most 
perplexing and irritating questions has been, What shall be 
deemed contraband of war ? The general principle is, that the 

* In the debate in the House of Commons, March 17th, Mr. D'Israeli, referring to 
the second article of the Declaration at Paris, that the neutral flag covers the enemy's 
goods, and to the reason given by Lord Palmerston for the adoption of it, said : " I 
must do the noble Lord the justice to say that he did not dwell much on that point. 
He admitted that the real causes of the change have been placed more clearly before 
the House by the honorable member for Birmingham. It was because, on the eve 
of a war with Kussia, we feared the assertion of the principle that a neutral flag does 
not cover the cargo might involve us in embarrassments with the United States. 
The noble Lord recognized the accuracy of that description." 

But Dr. Phillimore, who must be good authority, gives a reason altogether differ- 
ent, — one which has no reference to the United States ; and we certainly have no evi- 
dence that there was any notice given to the United States that Great Britain had 
adopted and would abide by the principle for which the latter had contended. Dr. 
Phillimore says : " At the breaking out of the present European war [1855], England 
found herself in close alliance, ofl'ensive and defensive, with France. They were to 
wage war together both by sea and land. It was therefore supposed to be necessary 
that there should be an agreement. bet ween them as to the question which has been so 
long under our consideration, of the exercise of belligerent rights towards neutrals. 
The result was a compromise. France abandoned her doctrine, that enemy's ships made 
enemy's goods ; England agreed to allow, during her alliance with France in the pres- 
ent war, the doctrine that free ships made free goods. But she scrupulously and ex- 
pressly declared that in so doing she ' waived a part of the belligerent rights appertaining 
to her bij the Law of Nations.' It will be seen, therefore, from the principles already 
laid down in this work, as well as from the reason of the thing, that England has 
retained unimpaired her belligerent right upon this important subject. In the communi- 
cations which have passed on this subject between England and the North Ameri- 
can United States, the Minister of tlic latter country observed in his reply : ' Not- 
withstanding the sincere gratification which Her Majesty's declaration has given to 
the President, it would have been enhanced if the rule alluded to had been announced 
as one which would be observed, not only in the present, but in every future war in 
which Great Britain shall be a party." (3 Phill., [292] 237.) In a note he says : 
"In 1823 and 1826-27 vain attempts were made to adjust this question between 
England and the North American United States." 



17 

neutral shall not aid either belligerent in his warlike opera- 
tions. The transportation of arms and munitions of war 
generally to a belligerent is clearly a violation of the duty of 
the neutral, but the list of articles regarded as contraband 
because of their direct or indirect assistance in the prosecution 
of the war has been extended greatly beyond goods necessarily 
of a warlike character ; and so controversies have arisen re- 
specting goods of a debatable description, the interest of the 
belligerent being to cut off all supplies from his enemy, and 
the interest of the neutral being for the largest liberty of trade 
and commerce. Great Britain, as a belligerent, has hereto- 
fore insisted, against the United States and other neutral 
nations, upon the largest catalogue of contraband goods. 
See the case of the Jonge Margaretta (1 Rob. Adm. Rep. 195), 
also the case of the Zelden Rust (6 Rob. Adm. Rep. 93), in 
which cheeses suitable for naval stores were held to be contra- 
band. 

As between Great Britain and the United States there is a 
right to capture despatches of the enemy. Great Britain has 
uniformly insisted upon the general principle that the carriage 
of the despatches of a belligerent is a violation of neutrality, 
and by the decisions of her Admiralty court has maintained 
the most stringent rule, to the extent of including as de- 
spatches " all official communications of official persons on the 
public affairs of the government," saying, if the papers so 
taken relate to public concerns, be they great or small, civil 
or military, the court will not split hairs and consider their 
relative importance. See extracts in our January number. 
Article X., from the case of the Caroline (6 Rob. Adm. Rep. 
461-470), case of the Susan (6 Rob. 461, note), case of the 
Atalanta (6 Rob. 440-460). In the case of the Caroline, 
above cited, an exception was made, to which we shall refer 
hereafter. 

In the war by Great Britain and France against Russia, 



18 

Great Britain, as we have seen, "waived the right to capture 
enemy's goods, but insisted on her right to capture despatches, 
and American writers have recognized this as a belligerent 
right. 

Controversies less numerous have arisen u^on the question, 
under what circumstances the transportation of persons be- 
longing to a belligerent party is a violation of neutrality. 
Here, again. Great Britain, as against the United States, has 
promulgated and enforced the rule limiting to the greatest ex- 
tent the right of the neutral. See what is said by Sir Wil- 
liam Scott respecting persons who were going to be employed 
in civil capacities in the government of Batavia (6 Rob. 434, 
Case of the Orozembo). 

A vessel resisting visitation and search renders herself liable 
to capture and condemnation. See case of the Swedish ship 
Maria, which was under convoy of a Swedish frigate (1 Rob. 
340). 

That the principles thus laid down remained, up to the time 
of the present rebellion, as the principles of international 
law, recognized, and to some extent, it might be said, estab- 
lished by Great Britain, is shown beyond doubt by the fact 
that Dr. Phillimore, whose work, in four volumes, was pub- 
lished at different times from 1854 to 1861, states them all, 
with undoubting confidence, as general principles. Other 
English writers, so far as they have had occasion to refer 
to them, state them in a similar way, perhaps not so much 
in detail. 

Against some of these doctrines the United States objected, 
but in vain, and finally acquiesced, so far as acquiescence is 
shown by a failure to follow up the objection by war, and by 
the general course of their judicial decisions. They have 
been recognized by the most eminent publicists here, and have 
been taught in the schools of law, so far as there has been oc- 
casion for instruction, as settled principles, — the principles of 



19 

Continental Europe, so far as they were different, not being 
recognized as authority, or as being at most of doubtful appli- 
cation. 

Dr. Phillimore quotes from Kent's Commentaries, with 
marked approbation, the following passage : " We have a 
series of judicial decisions in England and in this country, in 
which the usages and duties of nations are explained with that 
depth of research and that liberal and enlarged inquiiy which 
strengthen and embellish the conclusions of reason. They 
contain more intrinsic argument, more full and precise de- 
tails, more accurate illustrations, and are of more authority 
than the loose dicta of elementary writers. When those 
courts in this country which are charged with the administra- 
tion of international law have differed from the English adju- 
dications, we must take the law from domestic sources ; but 
such an alternative is rarely to be met with, and there is 
scarcely a decision in the English prize courts at Westminster 
on any general question of public right that has not received 
the express approbation and sanction of our national courts." 
(1 Kent's Com., 68 ; 1 Phill., [55] 81.) 

It appears from the articles adopted by the Congress at 
Paris, in 1856, that Great Britain did not by her participation 
in that adoption limit her rights in relation to any of the mat- 
ters involved in this case of the Trent, except so far as the 
right to capture enemy's goods in a neutral vessel may bear 
upon the case. There is no explanation or specification of the 
time when, or the circumstances under which, you may stop 
the ambassador of the enemy, or capture his ofiicers, soldiers, 
or civilians on board of a neutral vessel, — no surrender of 
the right claimed to capture despatches, — and no settlement 
of the list of what shall be regarded as contraband. 

It appears further from the result of the correspondence 
between the United States and Great Britain, in 1861, respect- 
ing the adoption of those articles by the former, that whatever 



20 

rights the United States as a belligerent would have had 
against Great Britain as a neutral, on the principles which 
governed the international relations of the two countries be- 
fore the Congress at Paris, are in no manner affected by the 
proceedings of that Congress, notwithstanding the proposition 
of the United States in the first instance to become a party to 
those articles, with an additional clause exempting private 
property from capture on the high seas, and, after that was 
rejected, their offer to adopt the four articles " pure and sim- 
ple." They may claim the right to capture enemy's goods in 
neutral bottoms, as they might have done before, notwith- 
standing the third of those articles provides for the exemption 
of such goods, and either of their offers of adhesion if accepted 
would have made them parties to the agreement that enemy's 
goods thus situated should be exempted. 

We are aware that Mr. Seward, in his reply to the demand 
for the delivery of Mason and Slidell, says : — 

" It has been settled by correspondence that the United States and 
Great Britain mutually recognized, as applicable to this local strife, 
these two articles of the declaration made by the Congress of Paris in 
1856, namely: That the neutral or friendly flag should cover enemy's 
goods, not contraband of war, and that neutral goods, not contraband 
of war, are not liable to capture under an enemy's flag." 

But how has this mutual recognition been settled ? The 
articles of the Declaration of Paris have never been adopted 
by the United States. Notwithstanding, therefore, there was 
no objection on the part of the United States to those two 
articles, there was no agreement between Great Britain and 
the United States respecting them ; and in case of a war in 
which Great Britain is a belligerent and the United States 
neutral, the former may allege that the matter was all left 
open, and that as to the latter she has the right of capture, 
which she only waived in the Russian war, and has not parted 



21 

with as against the United States by her agreement with other 
governments.* 

This failure to make a complete accession to the articles 
was not the fault of the United States, having been occa- 
sioned in the first instance by the provision that all the arti- 
cles must be adopted, or none, and by the refusal of Great 
Britain to agree to the exemption of private property from 
capture, and lastly by her insisting upon adding to the agree- 
ment to adopt a declaration which would, or it was supposed 
might, vary their effect. f 

* In the recent debate in Parliament already referred to, Lord Palmerston said, in 
regard to the second article of the Declaration at Paris " which said that the flag 
should cover the goods, that has always been the principle which the United States 
has maintained, and therefore no difficulty arises between England and the United 
States upon that article. It requires no additional declaration to bind them to the 
observance of that article, because that has always been their doctrine, and the fact 
that it was their doctrine led us to think that it was more prudent and wise to adopt, 
in common with other parties, the Declaration of Paris." 

But the fact that it was the doctrine of the United States years since did not pre- 
vept Great Britain from denying it and refusing to be bound by it. How does her 
agreement with France and other European powers to adopt it serve to bind the 
United States, when it is in that declaration coupled with another article which there 
was no good reason to suppose the United States would agree to, and with a pro- 
vision that any power which proposed to accede must, in the common phraseology, 
swallow the whole or none ? Where is the notification to the United States that 
Great Britain was ready to agree to their doctrine respecting enemy's property with- 
out an additional article by which the former should agree to abolish privateering ? 
His Lordship admitted that in case of war with the United States Great Britain could 
resort to privateers, notwithstanding the Declaration at Paris. — These statements of 
Mr. Secretary Seward and the Prime Minister, it will be seen, are by no means 
identical, but they may serve to show that during the remainder of " this local strife " 
enemy's goods in neutral vessels are not to be liable to capture. But they can hardly 
have a retrospective operation upon the principle which governed at the time of the 
capture of these enemy persons by Captain Wilkes. 

t In a note to an article on "Belligerents and Neutrals," published in the January 
number of the Edinburgh Review, (which must have been prepared originally for 
the columns of the London Times, and have been rejected by that paper because 
of the hostility and injustice manifested in the article toward the United States,) it is 
said, "The correspondence of the American government, recently published, proves 



22 

The United States have the right to claim against Great 
Britain, as a neutral, all that Great Britain could claim against 
them, on her principles, if the circumstances were reversed, 
and as those principles were held by her prior to the Congress 
at Paris. 

The right so to claim and insist is all the more clear from 
the fact that Great Britain voluntarily placed the United 
States, as respects her, in the position of a belligerent and 
herself as a neutral. By her recognition of the Confederates 
as a belligerent power, having the same rights of war as those 
possessed by the United States, she clearly gave the United 
States, as against her, all the rights of a belligerent, notwith- 
standing that they claimed, and still claim, that as to them- 
selves the Confederates are rebels and traitors. Her recogni- 
tion could not take away that right. 

There has been too much of a disposition on the part 
of English writers and speakers, when the United States 
claim to exercise the rights of war, to respond, " Why, you 
do not admit there is a war ; you say it is an insurrection." 
This would be well enough if the authority of the United 
States over the Confederate States were still admitted; but 
the answer comes with an ill grace, and without effect, from 
those who have invested the Confederate States with the char- 
acter of a belligerent, and thus rendered it necessary that as 
to them the United States should have a similar character, 
and be entitled of course to similar rights. 

that when Mr. Adams was instructed last summer to negotiate a convention with 
England and France on the basis of the Declaration of Paris, this measure was 
adopted solely with a view to entrap the Maritime Powers of Europe into acts 
adverse to the seceded States." 

But it appears also, from the same correspondence, that Lord John Russell, before 
the subject was mentioned to him bi/ Mr. Adams, directed Lord Lyons to make a similar 
proposal to Mr. Seward. Qucere, was that measure adopted by his Lordship solely 
with the view to entrap the United States into acts for the benefit of Great Britain 
and other maritime powers ? 



23 

It was in this state of international law as existing between 
the United States and Great Britain that Mason and Slidell 
escaped, clandestinely, through the blockade, to Havana, there- 
by more securely to reach Europe. It was matter of boasting 
that they had done so. It was proclaimed that they were 
commissioned as ambassadors, but they had not, and could 
not have that character, or be entitled to any of its immuni- 
ties, because the party that they represented was as to the 
United States insurrectionary and belligerent, and as to all 
the rest of the world, where recognized at all, a belligerent 
party only. Belligerents may send agents, but not ambassa- 
dors. That they had no title to be regarded as ambassadors 
is shown by the fact that they have had no reception or recog- 
nition as such. But they were hostile agents of the belliger- 
ent Confederacy, and themselves covered all over with the 
character of hostility. In fact, their agency had no other 
character than that of hostility. The Confederates had no 
diplomatic or commercial relations with any European power, 
and the very attempt to establish such relations was contrary 
to the Constitution of the United States, and of itself an act of 
insurrection and hostility against the United States. Herein 
the case is essentially different from the case of an established 
nation, engaged in a war, and sending its representatives abroad 
to continue and represent its interests as they had already 
been represented. In such case, an attempt by one belligerent 
to preserve the relations of amity already existing between 
itself and a neutral power has nothing of hostility to the 
other belligerent attached to it. The mission has of itself 
nothing of a hostile character. It is for the interest of the 
neutral, as well as for that of the belligerent, that the relations 
previously existing should be preserved, and, in the language 
of Sir "William Scott, " you are not at liberty to conclude that 
any communication between them can partake, in any degree, 
of the nature of hostility against you." But the powers of 



24 

Europe had no interest, legally or internationally speaking, in 
the mission of these persons. That, again, is shown by the 
fact of their non-reception. The Confederates alone were 
interested in that matter. The agents were sent to seek aid, 
countenance, and assistance for the insurrection. That was 
not only the primary, but it was, in the outset, the sole mo- 
tive ; for until it should receive such countenance, neither 
diplomatic nor commercial relations could be established. 
The establishment of such relations would of itself give aid 
and support. 

It may be admitted that the agents supposed that they had 
made their escape sure. It might probably be shown that the 
British Consul at Havana made some parade in speeding them 
on their way ; and that on board the Trent there was some- 
thing very like rejoicing in the honor of being common carrier 
to such distinguished personages. 

It is under such circumstances that Captain Wilkes, cruis- 
ing in the West Indies, and learning these facts, stopped the 
Trent, and captured the hostile officers, and the ovation which 
was preparing for them at Southampton is turned into an ulu- 
lation, venting itself in all manner of vituperation against the 
United States in general, and Captain Wilkes in particular. 

The part of Captain Wilkes's report material to the present 
discussion is as follows : — 

" The question arises in my mind whether I had the right to capture 
the persons of these Commissioners, and whether they are amenable to 
capture. There was no doubt I had the right to capture a vessel with 
written despatches, as they are expressly referred to in all authorities, 
subjecting the vessel to seizure and condemnation, if the captain of the 
vessel had knowledge of their being on board. But these gentlemen 
were not despatches in the literal sense, and did not seem to come 
under that designation, and nowhere could I find a case in point. That 
they were Commissioners I had ample proof from their own avowal, 
and that they were bent on mischievous and traitorous errands against 
our government. 



26 

" I then considered them as the embodiment of despatches, and it 
therefore became my duty to arrest their progress and capture them if 
they had no passports or papers from the federal government, as pro- 
vided for under the law of nations, viz. that foreign ministers of a 
belligerent on board of neutral ships are required to possess papers 
from the other belligerent to permit them to pass free. As regards the 
Trent, the agent of the vessel, the son of the British Consul at Havana, 
was well aware of the character of these persons. His father had 
visited them and introduced them as Ministers of the Confederate 
States on their way to England and France. They went in the 
steamer with the knowledge and consent of the captain, who endeav- 
ored afterward to conceal them by refusing to exhibit the passenger-list 
and papers of the vessel. There can be no doubt he knew that they 
were carrying important despatches, and were endowed with instruc- 
tions inimical to the United States." 

That Captain Wilkes acted without any orders to make the 
capture is undoubted ; that he acted in good faith, and in the 
exercise of what he deemed a duty to his government, is 
equally clear. 

The capture was not for the purpose of impressment into 
the navy of the United States, under any claim of a right to 
the services of the captured party, and therefore was not like 
the impressments heretofore made by the British government 
from the vessels of the United States. It was not a capture 
of rebels who after defeat were seeking an asylum in a foreign 
land, and therefore is utterly different from some other cases 
which have been cited against it. It was not a capture of 
fugitives from justice ; for the crimes of Mason and Slidell 
were those which of late years have been held not to come 
within the policy of extradition. All arguments founded upon 
such cases are out of place. They are not in point, nor 
analogous, and they present, therefore, neither a precedent nor 
a principle upon which to base a fair argument. The capture 
was expressly of hostile agents, bearers of hostile despatches, 
4 



26 

themselves, in the language of Captain Wilkes, " the embodi- 
ment of despatches," and the main question presented is, 
whether a belligerent has the right to capture persons having 
such a hostile character, when found on the high seas in a 
neutral vessel, proceeding directly on their hostile errand. 

It is not pretended that in making the seizure there was 
any damage to any material interest of Great Britain. Noth- 
ing belonging to her or her subjects was taken or injured. 
There has not been a suggestion that the slight delay in the 
voyage of the Trent worked an injury to any one. On the 
contrary, one of the motives which induced Captain Wilkes to 
forbear to capture the Trent was that such a course would 
occasion injury to innocent passengers ; and this has been ob- 
jected to as a consideration which he had no right to entertain. 

It is under such well-known circumstances that the demand 
was made by the British government for the delivery up of the 
persons captured. It was made by Lord Lyons, under in- 
structions from Earl Russell, dated November 30, in which his 
Lordship states that it appears from a letter of Commander 
Williams, agent for mails on board the contract steamer Trent, 
that the Trent left Havana with Her Majesty's mails, for Eng- 
land, having on board numerous passengers ; that on the 7th 
inst. a steamer having the appearance of a man-of-war, but 
showing no colors, fired first a round shot and then a shell 
across the bows of the Trent ; that the Trent stopped, and an 
officer with a large armed guard of marines boarded her; that 
the officer demanded a list of the passengers, which was re- 
fused, and he then said that he had orders to arrest Mason, 
Slidell, Eustis, and MacFarland ; that the commander of the 
Trent and Commander Williams protested against the act of 
taking by force ; but that the San Jacinto was at the time only 
two hundred yards from the Trent, her ship's company at 
quarters, and tompions out, resistance was therefore useless 
and the persons were forcibly taken out of the ship. 



27 

His Lordship then says : — 

" It thus appears that certain individuals have been forcibly taken 
from on board a British vessel, the ship of a neutral power, while such 
vessel was pursuing a lawful and innocent voyage, an act of violence 
which was an affront to the British flag and a violation of international 
law." 

He professes the willingness of Her Majesty's government 
to believe that the United States officer was not acting in 
compliance with any authority from his government, or that 
if he conceived himself to be so authorized, he greatly misun- 
derstood his instructions. He says that the British govern- 
ment cannot allow such an affront to the national honor to 
pass without full reparation, and Her Majesty's government 
trust that the government of the United States will of its own 
accord offer such redress as alone should satisfy the British 
nation, namely : — 

" The liberation of the four gentlemen and their delivery to your 
Lordship, in order that they may again be placed under British pro- 
tection, and a suitable apology for the aggression which has been 
committed." 

" Should these terms not be offered by Mr. Seward, you will propose 
them to him." 

It is true that the circumstances as detailed by Earl Russell 
do not serve to show that the captured confederates had any 
hostile mission or character. So far as it appears, on the face 
of the paper, they might have been most innocent and lamb- 
like personages, pursuing the lawful and innocent voyage 
spoken of in the despatch. But the facts as we have stated 
them respecting the true character and mission of the parties 
were well known in England at the time ; and as the attendant 
circumstances, to which we shall advert hereafter, show that it 
was not intended to admit explanations respecting their char- 
acter as a justification for their capture, we must understand 
that the circumstances as we have stated them constitute the 



28 

affront to the national honor which demanded the prompt rep- 
aration of delivering up the parties captured within the term 
of seven days, on penalty of the termination of the diplomatic 
relations between the two governments at the expiration of 
that time, by the withdrawal of Lord Lyons from Washington 
in case of a refusal, with such further consequences as might 
be determined upon, and which were indicated by the imme- 
diate transportation of large bodies of troops to Canada, and 
other great warlike demonstrations both military and naval. 
It is these facts which turn the " proposal " into a demand, 
and a very peremptory one at the best. 

We have no doubt that it was expedient that the United 
States should receive this demand as an implied admission 
that all the cases of impressment which have occurred (and 
which had not one hundredth part of the excuse that existed 
in the present case, even supposing that it could not be justi- 
fied) were not only unwarrantable, but were affronts to the 
United States, still unatoned for ; and as a further admission 
that the invasion of the actual territory of the United States, 
and the burning of the steamer Caroline there, which vessel 
certainly had no more decided character of hostility to Great 
Britain than Mason and Slidell had toward the United States, 
was an indefensible invasion of neutral rights ; the ratification 
of which by the British government furnished sufficient cause 
of war. And we are quite clear that, acting upon the demand 
as a concession, generally, to neutral rights, which had not 
before been made by Great Britain, it was expedient that the 
government should deliver up the captives without hesitation, 
although we are of opinion that the true principles of interna- 
tional law, as between all nations, will not justify a neutral 
vessel in transporting the agents of a belligerent, upon a hos- 
tile mission, until the rule is recognized that free ships make 
free goods and free persons. So long as it is unlawful for the 
neutral to transport contraband of war, and the officers and 



29 

soldiers of a belligerent, and so long as enemy's goods are 
liable to capture when found in a neutral vessel, so long, upon 
principle^ the agents of the belligerent, bound upon a hostile 
mission, cannot be protected from capture by the neutrality of 
the carrier. There will be a time for the discussion of these 
principles hereafter. 

We have no fault to find with the surrender itself. We 
wish we could say as much of the reply of Mr. Secretary 
Seward, by and through which the surrender was made. We 
have failed to appreciate the course of reasoning by which the 
Secretary arrives at his conclusion. He congratulates himself 
near the close that he finds himself at last upon the ground 
occupied by Mr. Madison, in relation to impressment. But 
how he got there it " would puzzle a Philadelphia lawyer " to 
discover, and a logician of ordinary acquirements must be 
equally at fault. 

The reply places upon the record the facts in relation to the 
character of the Commissioners, with certain statements of 
the proceedings of Captain Wilkes, as understood by the gov- 
ernment of the United States, showing that there was nothing 
offensive in the manner of the capture, and it then states that 
the case resolves itself into the following inquiries, to wit : — 

" 1. Were the persons named and their supposed despatches contra- 
band of war ? 

" 2. Might Captain Wilkes lawfully stop and search the Trent for 
these contraband persons and despatches ? 

" 3. Did he exercise that right in a lawful and proper manner ? 

" 4. Having found the contraband persons on board, and in presumed 
possession of the contraband despatches, had he a right to capture the 
persons ? 

" 5. Did he exercise that right of capture in the manner allowed and 
recognized by the law of nations ? 

" If all these inquiries shall be resolved upon in the affirmative, the 
British government will have no claim for reparation." 



30 

The first four of the questions are discussed very briefly, 
with an affirmative conclusion. But the Secretary finds that 
the difficulties of the case commence with the fifth question, 
because the case presented is of contraband persons, and not 
contraband goods. We give the statement in his own words : — 

" Only the fifth question remains, namely : Did Captain Wilkes ex- 
ercise the right of capturing the contraband in conformity with the law 
of nations ? 

" It is just here that the difficulties of the case begin : What is the 
manner which the law of nations prescribes for disposing of the contra- 
band, when you have found and seized it on board of the neutral 
vessel .'* 

" The answer would be easily found if the question were, What shall 
you do with the contraband vessel ? You must take or. send her into 
a convenient port, and subject her to a judicial prosecution there in ad- 
miralty, which will try and decide the question of belligerency, neutral- 
ity, contraband, and capture. So again you will promptly find the 
same answer if the question were, What is the manner of proceeding 
prescribed by the law of nations in regard to the contraband, if it be 
property or things of material or pecuniary value ? 

" But the question here concerns the mode of procedure, in regard, 
not to the vessel that was carrying the contraband, nor yet to the con- 
traband things which worked the forfeiture of the vessel, but to contra- 
band persons. 

" The books of law are dumb. Yet the question is as important as 
it is difficult. First, the belligerent captor has a right to prevent the 
contraband officer, soldier, sailor, minister, messenger, or courier from 
proceeding in his unlawful voyage, and reaching the destined scene of 
his injurious service. 

" But, on the other hand, the person captured may be innocent, that 
is, he may not be contraband. He therefore has a right to a fair trial 
of the accusation against him. The neutral state that has taken him 
under its flag is bound to protect him if he is not contraband, and is 
therefore entitled to be satisfied upon that important question. The 
faith of that state is pledged to his safety, if innocent, as its justice is 
pledged to his surrender, if he is really contraband. 



31 

" Here are conflicting claims, involving personal liberty, life, honor, 
and duty. Here are conflicting national claims involving welfare, 
safety, honor, and empire. They require a tribunal and a trial. The 
captors and captured are equals, the neutral and the belligerent state 
are equals. 

" While the law authorities were found silent, it was suggested at an 
early day by this government that you should take the captured per- 
sons into a convenient port and institute judicial proceedings there to 
try the controversy. But only courts of admiralty have jurisdiction in 
maritime cases, and these courts have formulas to try only claims to 
contraband chattels, but none to try claims concerning contraband per- 
sons. The courts can entertain no proceedings and render no judg- 
ment in favor or against the alleged contraband men. 

" It was replied. All this is true ; but you can reach in these courts a 
decision which will have the moral weight of a judicial one. By a 
circuitous proceeding convey the suspected men, together with the sus- 
pected vessel, into port, and try there the question whether the vessel 
is contraband ; you can prove it to be so by proving the suspected men 
to be contraband, and the court must then determine the vessel to be 
contraband. 

" If the men are not contraband, the vessel will escape condemna- 
tion. Still there is no judgment for or against the captured persons. 
But it was assumed that there would result from the determination of 
the court, concerning the vessel, a legal certainty concerning the char- 
acter of the men. This course of proceeding seemed open to many 
objections. It elevates the incidental inferior private interest into the 
proper place of the main paramount public one, and possibly it may 
make the fortunes, the safety or the existence of a nation depend on 
the accident of a merely personal and pecuniary litigation. 

" Moreover, when the judgment of the prize court upon the lawfulness 
of the capture of the vessel is rendered, it really concludes nothing, and 
hinds neither the belligerent state nor the neutral upon the great question 
of the disposition to be made of the captured contraband persons. That 
question is still to be really determined, if at all, by diplomatic arrange- 
ment, or by war" 

So far very well. Whether the principles which are to 



32 

govern the right of capture are those which relate to contra- 
band goods, or to enemy's property, or both ; when we come 
to the capture of persons, and not of goods, the principles 
which govern the mode of procedure fail, because there is no 
tribunal designated by international law having jurisdiction 
over the case. For the determination of questions concerning 
the vessels and goods there are tribunals recognized by the 
law of nations. For the determination of questions concern- 
ing the capture of persons there is no tribunal acting directly 
in personam^ or which pronounces any opinion respecting the 
captured persons, except as that opinion is incidental to the 
determination of the liability or rights of the vessel, which 
forms the subject-matter of the inquiry and the decree. Mr. 
Seward well says, that the judgment of the prize court 
concludes nothing, and binds neither the belligerent nor the 
neutral, and that the disposal of the captured persons is still 
to be determined, if at all, by diplomatic arrangement or by 
war. But when, after expressing surprise that the law of 
nations has furnished no more reasonable or perfect mode of 
determining questions of that character, he proceeds to state, 
that the regret we may feel on the occasion is nevertheless 
modified by the reflection that the difficulty is not altogether 
anomalous, and to say that equal and similar deficiencies are 
found in every system of municipal law, especially in the sys- 
tem which exists in the greater portions of Great Britain and 
of the United States, — and gives, as examples, the actions of 
trover and ejectment, in the first of which there is merely the 
fiction of alleging in the declaration that the property has 
been lost by the plaintiff and found by the defendant ; and in 
the other merely the supposition of a lease, with a fictitious 
lessee and a casual ejector, in order to avoid certain objections 
to a trial of the title by direct averments between the real 
parties ; but in both of which the courts have ample jurisdic- 
tion, and the merits of the case are tried precisely as if no 



33 

fiction was resorted to, — we must confess our surprise that 
any analogy could be imagined. Nor is our surprise lessened 
when the Secretary proceeds to say : — 

" If there be no judicial remedy, the result is, that the question must 
be determined by the captor himself on the deck of the prize vessel. 
Very grave objections are against such a course. The captor is armed ; 
the neutral is unarmed. The captor is interested, prejudiced, and per- 
haps violent ; the neutral, if truly neutral, is disinterested, subdued, and 
helpless. 

" The tribunal is irresponsible, while its judgment is carried into in- 
stant execution. The captured party is compelled to submit, though 
bound by no legal, moral, or treaty obligation to acquiesce." 

Clearly, thus far, the case is like that of the capture of 
goods. The question of the right to capture is never deter- 
mined by the captor upon the deck of the prize vessel ; and 
the objections stated apply to all cases of capture. If they are 
valid against the capture of persons supposed to be hostile 
agents, they are equally so against the capture of persons sup- 
posed to be officers and soldiers, and of goods supposed to be 
contraband also. The captor must always, of necessity, deter- 
mine whether the case is one in which he will assume to exer- 
cise the belligerent right ; for he never carries a prize court 
with him. But he only determines for himself whether he 
will assume the right. If he capture goods and vessel, he 
sends them into port, for disposition, through process of law, 
in a prize court. If he capture persons, he sends them into 
port, and places them in the custody of the government, for 
such disposition of them as shall be required and allowed by 
the law of nations. • The prize court of the belligerent may be 
as unscrupulous with regard to the vessel and goods as the 
government may be as to the persons, and in either case the 
neutral nation will not be bound by the determination, but 
may seek its redress as well in one class of cases as the other, 
and by the same means, and if " reparation is distant and 
5 



34 

problematical, and depends at last on the justice, magnanim- 
ity, or weakness of the state in whose behalf and by whose 
authority the capture was made," in regard to captured per- 
sons, it is quite as likely to be so in respect to goods, when 
there has been a condemnation. 

It may be admitted, that in ordinary cases the judicial tri- 
bunal which determines in relation to the property, may be 
expected to be guided more by legal principles than the gov- 
ernment which determines in respect to the persons, and 
which is influenced, perhaps, by political considerations. But 
the prize court is influenced, to some extent, by such consid- 
erations, in determining the rule which is applicable to the 
case ; and whatever difiference exists is not a difference in 
principle, nor one which arises from any necessity. The Sec- 
retary inquires : — 

" What if the state that has made the capture unreasonably refuse to 
hear the complaint of the neutral or to redress it ? In that case the 
very act of capture would be an act of war, of war begun without 
notice, and possibly entirely without provocation." 

But the same will be true if the prize court of the belligerent 
confiscate ship or goods, and the neutral is dissatisfied with 
the decision. The Secretary says further : — 

" It must be confessed, however, that while all aggrieved nations de- 
mand, and all impartial ones concede, the need of some form of judi- 
cial process in determining the character of contraband persons, no 
other form than the illogical and circuitous one thus described exists, 
nor has any other yet been suggested. Practically, therefore, the 
choice is between that judicial remedy or no judicial remedy what- 
ever 

" I think all unprejudiced minds will agree that, imperfect as the 
existing judicial remedy may be supposed to be, it would be, as a gen- 
eral practice, better to follow it, than to adopt the summary one of 
leaving the decision with the captor, and relying upon diplomatic de- 
bates to review his decision. Practically, it is a question of choice 



35 

between law, with its imperfections and delays, and war, with its evils 
and desolations." 

But this illogical, circuitous, judicial remedy is no remedy 
at all, as the Secretary had before shown very conclusively, 
where he says that there is no judgment for or against the 
captured persons, and that the question is to be determined, 
if at all, by diplomatic arrangement or by war. 

Suppose, by way of illustration, that a prize crew had been 
put on board the Trent, and she had been sent in for adjudi- 
cation ; and that upon the filing of the libel, and the hearing 
of the case, the judge of the prize court had declared his 
opinion that Mason and Slidell were liable to capture, on the 
principle that subjected enemy's goods to capture, but that he 
did not find that the transportation was a violation of neutral- 
ity, and therefore the vessel was not liable to confiscation ; 
and thereupon he discharged the vessel, with costs for deten- 
tion. No proceedings would have been had against Mason 
and Slidell. They would not have been parties to the libel or 
the trial, not entitled to be heard, and of course there would 
be no judgment against them. But the government would 
still hold them, and allege the original capture and the opinion 
of the prize court as a justification. What kind of a judi- 
cial remedy would that be against those persons, who, hav- 
ing no opportunity to be heard in the court, were nevertheless 
claimed as bound and held by the judgment, notwithstanding 
that the vessel, against which the proceedings were had, was 
released ? As to them, it would not be even an illogical 
and circuitous remedy. It is a farce, or worse, to desig- 
nate it as a judicial remedy. There clearly is no judicial 
remedy in any case of the capture of persons, international 
law having provided no tribunal with jurisdiction over such 
case. 

This may be a defect : it undoubtedly, is so ; one proper to 
be remedied by separate treaty, or by a congress of nations. 



36 

But it is better to admit the defect, and to place the respon- 
sibility of determining the question, as a political question 
(which it truly is in the existing state of the law), upon the 
government making the capture, than to talk about a judicial 
remedy, upon a political question, in a prize court, which has 
before it no process against the person, does not hear him, nor 
render any judgment for or against him, for the reason that it 
has no jurisdiction whatever over him. The total want of 
jurisdiction of any prize court over Mason and Slidell, over 
the political offences which they have committed, and over 
the question whether they should be held or discharged un- 
der the capture, cannot for a moment be denied. All this 
serves to show the utter folly of the position, which has been 
contended for so strenuously by some persons, that it was 
necessary to send in the Trent for adjudication, in order to 
legalize the capture of the persons, supposing that a right of 
capture existed, even although there might be no right to have 
the vessel confiscated. 

But we perceive as we proceed why Mr. Secretary Seward, 
after reaching the sound conclusion that the judgment of a 
prize court could determine nothing in relation to the lawful- 
ness of the capture of these persons, still admits that, as a 
general practice, it is better to follow this " illogical " judicial 
remedy upon a political question over which the court has no 
jurisdiction, and upon which there is in fact no adjudication. 
It is in this way that the conclusion is reached that the cap- 
tain ought to be required to show that the failure of the 
judicial remedy results from circumstances beyond his control, 
and without his fault. It is admitted that there are cases in 
which, even where goods are captured, it is not necessary to 
send the vessel in for adjudication. Captain Wilkes gave two 
reasons for not sending in the Trent. His language, as quoted 
in Mr. Seward's reply, is : — 

" I forbore to seize her in consequence of my being so reduced in 



37 

officers and crew, and the derangement it would cause innocent persons, 
there being a large number of passengers who would have been put to 
great loss and inconvenience as well as disappointment from the inter- 
ruption it would have caused them in not being able to join the steamer 
from St. Thomas to Europe. I therefore concluded to sacrifice the 
interests of my officers and crew in the prize, and suffered her to pro- 
ceed after the detention necessary to effect the transfer of those com- 
missioners, considering I bad obtained the important end I had in 
view, and which affected the interests of our country, and interrupted 
the action of that of the Confederates." 

We infer from this that Captain Wilkes did not intend to 
capture the Trent, and did not consider that he had done so. 
He speaks of her, it is true, as " prize " ; but this, taken in 
connection with his statement that he forbore to seize her, and 
with all the facts which seem clearly to show that he did not 
take possession of her, must be construed to mean that he 
considered her as prize if he had seen fit to treat her as such, 
but that he concluded merely to detain her long enough to 
capture the persons. 

We do not, however, deem this material. Supposing it to 
be a case of release after capture, he gives two reasons for it. 
Mr. Secretary Seward inquires into their validity, and finds 
the want of a sufiicient crew to be a good reason, and the de- 
sire to perform the duty of capture without inconvenience to 
third persons to be a bad one. Supposing this to be legally 
true, the latter reason certainly could not vitiate the former, 
because it is perfectly consistent with it. Ordinarily, if a 
man offer two independent grounds of defence, one good and 
the other insufficient, the validity of the first is not impeached 
by the other. If Captain Wilkes was in fact reduced in offi- 
cers and crew, so that he might for that reason decline to send 
in the Trent, it is of no consequence that he stated also the 
great loss and inconvenience it would cause to innocent per- 
sons as an additional reason why he forbore to seize her. The 



38 

case presented was one for inquiry into the fact of the reduc- 
tion of the crew, and whether the prudential reason was suffi- 
cient. But the Secretary was doubtless willing to reach the 
conclusion that the prisoners should be surrendered. He 
could not do this upon the merits of the case, tried by inter- 
national law as existing between the United States and Great 
Britain; and instead of placing the surrender, as he might 
have placed it, upon the implied relinquishment by Great 
Britain of the general principles and doctrines which her 
statesmen and courts have maintained against neutral na- 
tions, when she has been the belligerent, and which in con- 
sequence have been assumed by jurists here as governing prin- 
ciples, he, unfortunately, as we think, adopted the " illogical 
and circuitous " reasoning by which he brought the question 
of the necessity of sending in the Trent as one upon which 
the question of surrender was to depend, and then (after 
treating the reasons which were given for the omission as sep- 
arate and independent) he finally concludes that 

" The second reason assigned by Captain Wilkes for releasing the 
Trent differs from the first. At best, therefore, it must be held that 
Captain Wilkes, as he explains himself, acted from combined senti 
ments of prudence and generosity, and so that the release of the prize 
vessel was not strictly necessary or involuntary." 

In other words, he treats the two as a single mixed reason, 
and the whole mixture as bad and insufficient, by reason of 
the benevolent alloy or adulteration which was combined with 
the prudential part relating to the weakening of the crew of 
his own vessel ; and thus he finds that 

" For this error the British government has a right to expect the 
same reparation that we as an independent state should expect from 
Great Britain, or from any other friendly nation, in a similar case." 

Here we reach the reason for the self-congratulation, to 
which we have already adverted. The Secretary proceeds to 
say : — 



39 

" I have not been unaware that, in examining this question, I have 
fallen into an argument for what seems to be the British side of it 
against my own country. 

" But I am relieved from all embarrassment on that subject. I had 
hardly fallen into that line of argument when I discovered that I was 
really defending and maintaining, not an exclusively British interest, 
but an old, honored, and cherished American cause, not upon British 
authorities, but upon principles that constitute a large portion of the 
distinctive policy by which the United States have developed the re- 
sources of a continent, and thus, becoming a considerable maritime 
power, have won the respect and confidence of many nations. 

"These principles were laid down for us in 1804 by James Madison, 
when Secretary of State in the administration of Thomas Jefferson, in 
instructions given to James Monroe, our Minister to England. 

" Although the case before him concerned a description of persons 
different from those who are incidentally the subjects of the present 
discussion, the ground he assumed then was the same I now occupy, 
and the arguments by which he sustained himself upon it have been an 
inspiration to me in preparing this reply. 

" ' Whenever,' he says, ' property found in a neutral is supposed to 
be liable on any ground to capture and condemnation, the rule in all 
cases is, that the question shall not be decided by the captor, but be 
carried before a legal tribunal, where a regular trial may be had, and 
where the captor himself is liable to damages for an abuse of his 
power. 

" ' Can it be reasonable, then, or just, that a belligerent commander, 
who is thus restricted, and thus responsible in a case of mere property, 
of trivial amount, should be permitted, without recurring to any tribu- 
nal whatever, to examine the crew of a neutral vessel, to decide the 
important question of their respective allegiances, and to carry that de- 
cision into execution by forcing every individual he may choose into a 
service abhorrent to his feelings, cutting him off from his most tender 
connections, exposing his mind and his person to the most humiliating 
discipline, and his life itself to the greatest dangers ? Reason, justice 
and humanity unite in protesting against so extravagant a proceeding.' " 

A moment's consideration must serve to show any one that 



40 

the two cases are entirely dissimilar. In the cases of impress- 
ment it is -well known that the British officers who seized 
sailors on board of American vessels did not place the persons 
thus taken in the custody of their government for inquiry, 
and for the determination of the question what disposition 
should he made of them, but they were immediately put to 
service in the British navy, and required to perform service 
therein, as if they had voluntarily enlisted. The commander, 
therefore, in those cases, not only assumed that there was 
ground for capture, but he determined the question of right, 
and carried the judgment into immediate execution. Mason 
and Slidell, on the other hand, were delivered over to the 
government for the determination of the question whether 
the capture was rightful, and it became the duty of the gov- 
ernment to make an immediate inquiry, and to decide all 
questions arising out of it. The analogy to the case of cap- 
tured goods was carried out, as far as it could be in the 
absence of any tribunal having jurisdiction over the captured 
persons. If Captain Wilkes had senteliced Mason and Slidell 
to hard labor on board of his vessel for their rebellion, there 
would have been some analogy to the cases of British impress- 
ment, to which the instructions of Mr. Madison related. 

As the case is thus put by the Secretary, it would seem that 
the great objection to impressment was, that the British officer 
did not capture and send in the ship, and that, if he had done 
so, the objection would have been obviated. 

But this is not all. Mr. Seward, after having thus found 
that Captain Wilkes was wrong in not sending in the vessel, 
adds : — 

" In coming to my conclusion, I have not forgotten that, if the safety 
of this Union required the detention of the captured persons, it would 
be the right and duty of this government to detain them.* 

* In the debate from which we have made several extracts, Lord Palmerston 
referred to this passage in Mr. Secretary Seward's reply, in this wise: "Much criti- 



41 

"But the effectual check and waning proportions of the existing 
insurrection, as well as the comparative unimportance of the captured 
persons themselves, when dispassionately weighed, happily forbid me 
from resorting to that defence." 

We have already adverted to this, and to Earl Russell's 
reply to it. 

The Secretary says, at last : — 

" I prefer to express my satisfaction, that, by the adjustment of the 
present case upon principles confessedly American, and yet, as I trust, 
mutually satisfactory to both of the nations concerned, a question was 
finally and rightly settled between them which heretofore exhausted, 
not only all forms of peaceful discussion, but also the arbitrament of 
war itself, for more than half a century alienated the two countries 
from each other, and perplexed with fears and apprehensions all the 
other nations." 

But what question is finally settled by the surrender, when 
it is made explicitly upon the ground that the proceedings 
were erroneous because the vessel was not sent in, (one of the 
reasons for the omission to capture and send her in being 
deemed insufficient,) a ground upon which Great Britain did 
not place the demand, and which she does not admit to be of 
itself a sufficient ground on which to place it ? And more 

cism has been passed upon a remark of my right honorable friend the Secretary for 
War, that war puts an end to treaties. Undoubtedly war does put an end to trea- 
ties, and even to declarations of this sort [the Declaration of Paris], and in the event 
of war you would have to rest upon the honor and good feeling of the parties who 
had agreed to them in time of peace. "We have had a recent instance to show that 
that principle is admitted and acted upon, and that such declarations are not always 
likely to be observed by governments ; because the President of the United States 
maintaining, as he did, that the capture of those two gentlemen on board the Trent 
was at variance with the unvariable and acknowledged principles of the United 
States, and allowing therefore his duty to give them up, yet declared that, if it had 
been for the interest [ ! ] of his country, — departing from his own principles, and 
from the admitted doctrine of the United States, — he should have felt it his duty 
not to give them up." We doubt whether the President will admit that this is a 
fair construction of the paragraph above quoted. 

6 



42 

especially what is finally settled, when this surrender is accom- 
panied by a declaration that, if the safety of the Union re- 
quired, it would be the right and duty of the government to 
detain these persons, notwithstanding the irregular manner in 
which they came into its possession, and the right of the Brit- 
ish government to claim reparation therefor ? This, surely, 
not only settles nothing, but leaves all the matters in a much 
more involved state than they were before the case of the 
Trent occurred ; and it is for this reason alone that we have 
dissected the reply of the Secretary, which has been so much 
lauded by political partisans. 

It may be said, that, if the surrender had been made upon 
the general ground which we have suggested, nothing of 
international law would thereby have been settled. This is 
true. But it would have left the whole subject-matter open to 
discussion and negotiation, and the United States would have 
stood in a favorable position to press home upon Great Britain 
the adjustment of questions relating to neutral and belligerent 
rights. 

The despatch of Earl Russell to Lord Lyons in reply to Mr. 
Secretary Seward's communication calls into prominence no 
fact to which we have not already adverted. 

The first jDart of it, in which he states that " the general 
right and duty of a neutral power to maintain its own com- 
munications and friendly relations with both belligerents can- 
not be disputed," and his suggestions respecting the impor- 
tance of so doing when the neutral nation has numerous 
citizens resident in the territories of both belligerents, and 
when its citizens have property of great value in the territo- 
ries of each, is well fitted to show that the neutral nation has 
the right to have ambassadors and consuls within the territo- 
ries of each belligerent, and to receive and recognize such 
officers of each belligerent, if an independent and recognized 
power. Such relations, being once established between two 



43 

powers, should not be broken off by a war entered on by 
either party with a third power, neither should a war prevent 
the establishment of such relations between either of the par- 
ties to it, being an independent nation, and any other power. 
When such relations are established, a vessel of the neutral 
nation may carry despatches from the minister or consul of 
either belligerent residing within the neutral territory to his 
government at home, on the presumption that such despatches 
relate to the affairs between the two governments. That was 
the case of the Caroline (6 Rob. Adm. 461), cited by Earl 
Russell, in which Sir William Scott admitted that the vessel 
had the right to carry the despatches to the home government, 
but nevertheless condemned her " to pay for heating the 
poker," that is, to the costs and expenses of the adjudication. 
But that case is so unlike the present that it furnishes no 
precedent. It is valuable only for the principles which are 
stated in it. 

Earl Russell says : — 

" It seems no less clear that such communications must be as legiti- 
mate and innocent in their first commencement as afterward, and that 
the rule cannot be restricted to the case in which diplomatic relations 
are already formally established by the residence of an accredited min- 
ister of the belligerent power in the neutral country. It is the neutral- 
ity of the one party to the communications, and not either the mode of 
the communication or the time when it first takes place, which furnishes 
the test of the true application of the principle. The only distinction 
arising out of the peculiar circumstances of a civil war and of the non- 
recognition of the independence of the de facto government of one of 
the belligerents, either by the other belligerent or by the neutral power, 
is this, that ' for the purpose of avoiding the difficulties which might 
arise from a formal and positive solution of these questions, diplomatic 
agents are frequently substituted, who are clothed with the powers and 
enjoy the immunities of ministers, though they are not invested with 
the representative character, nor entitled to diplomatic honors.'" 

The last part of the paragraph's copied from Wheaton's 



44 

" Elements of International Law " (Book III. Ch. 1, § 4), and, 
standing alone, might perhaps have a tendency to show that 
Mason and Slidell, having been commissioned by the bellige- 
rent government as ambassadors, were to be regarded as diplo- 
matic agents, clothed with the powers and enjoying the im- 
munities of ministers. It is evidently for such purpose that 
his Lordship cites it, although he subjoins, in very guarded 
terms, — 

" Upon this footing Messrs. Mason and Slidell, who are expressly 
stated by Mr. Seward to have been sent as pretended ministers pleni- 
potentiary from the Southern States to the courts of St. James and of 
Paris, must have been sent, and would have been, if at all, received, 
and the reception of these gentlemen upon this footing could not have 
been justly regarded, according to the law of nations, as a hostile or 
unfriendly act toward the United States. Nor, indeed, is it clear that 
these gentlemen would have been clothed with any powers, or have 
enjoyed any immunities, beyond those accorded to diplomatic agents 
not officially recognized." 

But a reference to the preceding paragraph in Wheaton 
shows that he is speaking of a case in which diplomatic rela- 
tions of some sort have been already established ; and from 
other parts of his work it appears conclusively that he cannot 
be cited as an authority for the proposition that Mason and 
Slidell, on their way to Europe, had any diplomatic character, 
or that they were entitled to any immunities by reason of their 
commissions from the Confederate States. On the contrary, 
those commissions only proved them to be, as we have before 
said, officers of the Confederacy on an errand hostile to the 
United States. 

In the fourth section of Wheaton, immediately preceding 
the paragraph quoted by Earl Russell, the author says : — 

" In the case of a revolution, civil war, or other contest for the sov- 
ereignty, although, strictly speaking, the nation has the exclusive right 
of determining in whom the legitimate authority of the country resides. 



45 

yet foreign states must of necessity judge for themselves whether they 
will recognize the govei'nment de facto, by sending to and receiving 
ambassadors from it ; or whether they will continue their accustomed 
diplomatic relations with the prince whom they choose to regard as the 
legitimate sovereign, or suspend altogether these relations with the 
nation in question. So, also, where an empire is severed by the revolt 
of a province or colony declaring and maintaining its independence, 
foreign states are governed by expediency in determining whether they 
will commence diplomatic intercourse vf'iih. the new state, or wait for its 
recognition by the metropolitan country." 

The words which we have italicized in this paragraph give 
us the application of the paragraph cited by Earl Russell. 
In a note by the editor of Wheaton to the paragraph cited by 
his Lordship, reference is made to the instructions which were 
sent by Mr. Webster, then Secretary of State, to Mr. Rives, 
Minister of the United States to Paris, upon the last change 
in the constitution of Prance by the elevation of the Emperor 
Napoleon III., in which he. said : — 

" From President Washington's time down to the present jt has been 
a principle always acknowledged by the United States, that every 
nation possesses a right to govern itself according to its own will, to 
change its institutions at discretion, and to transact its business through 
whatever agents it may think proper to employ. 

" This cardinal point in our own policy has been strongly illustrated 
by recognizing the many forms of political power which have been 
successively adopted by France in the series of revolutions with which 

that country has been visited And if the French people have 

now, substantially, made another change, we have no choice but to 
acknowledge that also, ^nd, as the diplomatic representative of your 
country in France, you will act as your predecessors have acted, and 
conform to what appears to be the settled national authority." 

The text serves to show that the United States would 
commence diplomatic intercourse with a new state only upon 
ascertaining that it maintained^ as welt as declared^ its inde- 



46 

pendence, 'and the note that they will continue the intercourse 

* 
with a nation already existing, in case of a revolution, when 

the revolutionary power and authority appear to be settled. 

Respecting the privileges and immunities of ambassadors 

Wheaton says : — 

" From the moment a public minister enters the territory of the 
state to which he is sent, during the time of his residence, and until 
he leaves the country, he is entitled to an entire exemption from the 
local jurisdiction, both civil and criminal. Representing the rights, 
interests, and dignity of the sovereign or state by whom he is dele- 
gated, bis person is sacred and inviolable. To give a more lively idea 
of this complete exemption from the local jurisdiction, the fiction of 
extra-territoriality has been invented, by which the minister, though 
actually in a foreign country, is supposed still to remain within the 
territory of his own sovereign. He continues still subject to the laws 
of his own country, which govern his personal status and rights of 
property, whether derived from contract, inheritance, or testament. 

This exemption from the local laws and jurisdiction is founded 

on mutual utility, growing out of the necessity that public ministers 
should be entirely independent of the local authority, in order to fulfil 
the duties of their mission. The act of sending the minister, on the one 
hand, and of receiving him, on the other, amounts to a tacit compact 
between the two states that he shall be subject only to the authority of 
his own nation 

" The minister's person is, in general, entirely exempt both from the 
civil and criminal jurisdiction of the country where he resides." — 
Elements, Part III. Ch. 1, §§ 14, 15. 

These extracts, which but express the received doctrines 
upon the subject, indicate that the broad seal of the Con- 
federate States, even if it were as broad as the Atlantic 
Ocean, could not confer upon those agents any privileges or 
immunities, either during their transit or on their arrival in 
England, until they had been received in a diplomatic charac- 
ter by the British government, or until the independence of 
the Confederate States should be acknowledged by Great 



47 

Britain. When that takes place, it will hardly have a retro- 
spective operation, so as to constitute them ambassadors ab 
initio. Will her Majesty's legal advisers stake their legal 
reputation upon an opinion that Mr, Mason, when he had 
landed in England, was entitled to exemption from arrest for 
debt by reason of the diplomatic character conferred on him 
by the Confederate government ? Not they ! Earl Russell 
himself will not attempt to maintain that proposition for an 
instant. No respectable county-court lawyer in England will 
venture such an opinion. (We will not say that such an 
opinion might not be obtained from M. Hautefeuille, " for a 
consideration.") Still less will any lawyer in Great Britain 
undertake to maintain that Mr. Slidell, who was sent to 
France, was entitled to privileges and immunities in England 
as a diplomatic agent ; and if- not, what interest had Great 
Britain in maintaining the rights and privileges of his embassy 
either on ship or shore ? Earl Russell says : " The general 
right and duty of a neutral power to maintain its own commu- 
nications and friendly relations with both belligerents cannot 
be disputed." And again : " In the performance of these 
duties [' the duties of humanity, reciprocally due from nation 
to nation '] on both sides, the neutral nation has itself a most 
direct and material interest, especially when it has numerous 
citizens resident in the territories of both belligerents." But 
it is not supposed that Great Britain was the guardian of 
France in this matter, charged with the duty of maintaining 
the communication and friendly relations of France with the 
Confederates, or that she had any direct and material interest 
in the performance of any duties of humanity arising between 
France and the Confederation ; and if she had not, Mr. Sli- 
dell's diplomatic character as ambassador to France, where he 
has not even to this day been recognized as a diplomatic 
agent, will not show that he was entitled to privileges and 
immunities, as an ambassador^ on board a British vessel. To 



48 

what rights and immunities he was entitled as a citizen of the 
world, or to what liabilities he was subjected as contraband of 
war, or as an active enemy of the United States, are other and 
different questions. How far it would be the right or duty of 
Great Britain to protect him as an ambassador, if he had been 
accredited by an independent nation to the court of Paris, 
is still another question. 

A minister, as we have seen, is under the jurisdiction of his 
own government while actually resident at the court to which 
he is accredited. But here again we must recollect that the 
Confederate States had, as to the United States, only an insur- 
rectionary and belligerent jurisdiction, and as to Great Brit- 
ain, being recognized only as a belligerent, they had only a 
belligerent jurisdiction. The British cabinet will hardly 
admit that there is a belligerent jurisdiction on the part of 
the Confederate government within the territory of Great 
Britain. As to her ports, the acknowledgment of the bel- 
ligerent status may be said to have opened them to the ves- 
sels of the Confederates, until excluded. 

Assuming that he has shown by his own reasoning, and the 
authority of Wheaton, that Mason and Slidell were entitled 
to a diplomatic character and diplomatic immunities, Earl 
Russell proceeds to controvert Mr. Seward's application of 
Sir William Scott's remark, that you may stop an ambassador ; 
to maintain that an ambassador is not contraband of war, 
and cannot therefore be taken on board a neutral vessel ; and 
further, to deny the application of what that eminent judge 
said respecting the transportation of civil officers. 

In this connection it is quite possible that there is some- 
thing slightly significant in the use by his Lordship once and 
again of the term " dictum''^ as applied to certain opinions of 
Sir William Scott. It is well understood that, in general, this 
term is applied to those remarks of a judge which are not 
necessary to the decision of the case, and that, so applied, it 



49, 

indicates that the remark referred to is not to be regarded as 
having the character of authority, or perhaps that it is even 
suspected of being unsound. If this designation is to be 
applied to all those portions of Sir William Scott's opinions 
which were not necessary to the determination of the case 
before him, his "judgments" may be shorn of some of their 
honors. But Earl Russell does not directly deny that the 
dicta of the judge express the rules of law as they have 
heretofore been held by Great Britain. He attempts to show 
that Vattel, who is cited by Sir William Scott as an authority 
for the position tliat you may stop the ambassador of your 
enemy on his passagfe, does not support the position that you 
may stop him on board of a neutral vessel. But Earl Russell 
is unfortunate in supposing that Sir William Scott had refer- 
ence to but one passage in Vattel, in the remarks which he 
made respecting exercising the right of war against, and stop- 
ping, an ambassador on his passage. His Lordship cites and 
quotes from Vattel, Book IV. Ch. 7, Sect. 85 : — 

" On peut encore attaquer et arreter ses gens, par-tout oil on a la 
liberie d'exercer des actes d'hostilite. Non-seulement done on peut 
justement refuser le passage aux ministres qu'un ennemi envoy e k 
d'autres souverains ; on les arrete meme, s'ils entreprennent de passer 
secrettement et sans permission dans les lieux dont on est maitre." 

Translated in Mr. Chitty's edition as follows : — 
" His people may also be attacked and seized wherever we have a 
right to commit acts of hostility. Not only, therefore, may we justly 
refuse a passage to the ministers whom our enemies send to other sov- 
ereigns ; we may even arrest them if they attempt to pass privately, 
and without permission, through places belonging to our jurisdiction." 

But if his Lordship had turned to Chapter V. he would have 
found that Vattel, after stating, in Section 63, that a sovereign 
who attempts to hinder another from sending and receiving 
public ministers does him ah injury, and offends against the 
law of nations, says, in Section 64 : — 
7 



60 

" Mais cela ne doit s'entendre que d'un terns de paix ; la guerre 
donne lieu a d'autres droits. Elle permet d'oter a I'ennemi toutes 
ses ressources, d'empecher qu'il ne puisse envoyer ses ministres pour 
solliciter des secours." 

Translated in Mr. Chitty's edition : — 

" But this is to be understood only of a time of peace ; war intro- 
duces other rights. It allows us to cut off from an enemy all his re- 
sources, and to hinder him from sending ministers to solicit assistance." 

"We suppose that the substantial fidelity of this English 
translation will not be denied ; and in some cases you can hin- 
der the enemy from sending, only by stopping the ambassador. 
Sir William Scott, doubtless, had reference to both passages in 
Vattel, and the latter not only justifies his remark, that " you 
may stop the ambassador of your enemy on his passage," but, 
if Mason and Slidell were to be regarded as ambassadors or 
diplomatic agents, it covers the very case ; unless an exception 
to the right to stop or hinder can be established by reason of 
the neutrality of the vessel or its position on the voyage. In 
other words, the diplomatic character, while on their transit, 
will not save them. There must be something else to establish 
the exemption. 

His Lordship is equally unfortunate when he says further, 
of the remark of Sir William Scott, " The sole object which 
Sir William Scott had in view was to explain the extent and 
limits of the doctrine of the inviolability of ambassadors in 
virtue of that character." We must be permitted to dissent 
from this conclusion. The case in which the remarks were 
made was that of the Caroline, before referred to, in which 
the judge held that the carriage of despatches by a neutral, 
from the minister of a belligerent residing in the neutral ter- 
ritory, to the home government, was lawful, but condemned 
the vessel to pay costs and expenses, because by taking such 
despatches the neutral merchant " gives the captors an unde- 



51 

niable right to intercept and examine the nature and contents 
of the papers which he is carrying," and subjects himself to 
the inconvenience of having his vessel brought in for examina- 
tion, and to the necessary detention and expense. After say- 
ing of captured despatches, " If the papers so taken relate to 
public concerns, be they great or small, civil or military, the 
court will not split hairs, and consider their relative impor- 
tance," he took a distinction between " despatches coming 
from any part of the enemy's territory, whose commerce and 
communication of every kind the other belligerent has a right 
to interrupt,^' and despatches of ministers resident abroad to 
the home government of the belligerent, and said, " They are 
despatches from persons who are, in a peculiar manner, the 
favorite objects of the protection of the law of nations, ambas- 
sadors, resident in a neutral country for the purpose of pre- 
serving the relations of amity between that state and his own 
government." 

Still further, to show the propriety of permitting the de- 
spatches of the latter to be carried by the neutral, because the 
neutral country has the right to preserve its relations with the 
enemy, he added : — 

" I have beforie said that persons discharging the functions of ambas- 
sadors are^ in a peculiar manner, objects of the protection and favor of 
the law of nations. The limits which are assigned to the operations of 
war against them, by Vattel and other writers upon those subjects, are, 
that you may exercise your right of war against them, wherever the 
character of hostility exists ; Tou may stop the ambassador of your 
enemy on his passage ; but when he has arrived, and has taken upon 
himself the functions of his office, and has been admitted in his repre- 
sentative character, he becomes a sort of middle man, entitled to peculiar 
privileges as set apart for the protection of amity and peace, in main- 
taining which all nations are, in some degree, interested." 

The italics in this extract are those of Sir William Scott. 
This statement of the case, and of his language, shows con- 



62 

clusively that, so far from its being his sole object to explain 
the extent and limits of the doctrine of the inviolability of 
ambassadors, his reference to them was merely by way of 
illustrating his doctrine in relation to the differences in the 
character of despatches. The case involved no question re- 
specting the privileges of an ambassador. 

Now let us consider the paragraph from Yattel which Earl 
Russell cites, to the effect that the enemy's people may be 
attacked and seized wherever we have a right to commit acts 
of hostility. Upon this proposition of Vattel his Lordship 
draws this conclusion : — 

"The rule, therefore, to be collected from these authorities is, that 
you may stop an enemy's ambassador in any place of which you are 
yourself the master, or in any other place Avhere you have a right to 
exercise acts of hostility. Your own territory, or ships of your own 
country, are places of which you are yourself the master. The 
enemy's territory, or the enemy's ships, are places in which you have a 
right to exercise acts of hostility. Neutral vessels, guilty of no viola- 
tion of the laws of neutrality, are places where you have no right to 
exercise acts of hostility." 

We beg leave to say that this conclusion does not result from 
the principle as stated by Yattel. On the contrary, that of it- 
self seems fully to justify the seizure of an ambassador of the 
enemy on a voyage from his own country to a neutral port, 
and in a neutral vessel, because you may and do exercise acts 
of hostility on hoard neutral vessels having contraband of war 
or enemy's property on board, and do exercise acts of hostil- 
ity in every capture of that character. The vessel is captured 
and sent in solely upon the ground of the right there to do a 
hostile act. "When you capture enemy's property, it is an act 
of hostility against the enemy. When you capture contra- 
band of war, belonging to the neutral, it may be said to be an 
act of hostility against neutral and enemy also. But in both 
cases the justification is founded upon the right to exercise 



53 

those acts of hostility in and upon the \ neutral vessel. Ergo, 
you may capture the ambassador there, unless there is some 
other reason than the fact that he is on board a neutral ves- 
sel to prevent it. 

Of the language of Sir William Scott in the case of the 
Orozembo, — where he says, of the transportation of civilians, 
" It appears to me, on principle, to be but reasonable that, 
whenever it is of sufficient importance to the enemy that such 
persons should be sent out on public service, at the public ex- 
pense, it should afford equal ground of forfeiture against the 
vessel that may be let out for a purpose so intimately con- 
nected with the hostile operations," — his Lordship says: — 

"The other dictum of Sir William Scott, in the case of the Oro- 
zembo, is even less pertinent to the present question. That related to 
the case of a neutral ship, which, upon the effect of the evidence given 
on the trial, w^as held by the court to have been engaged as an enemy's 
transport, to convey the enemy's military officers, and some of his civil 
officers whose duties were intimately connected with military opera- 
tions, from the enemy's country to one of the enemy's colonies, which 
was about to be the theatre of those operations, the whole being done 
under color of a simulated neutral destination. But as long as a neu- 
tral government, within whose territories no military operations are 
carried on, adheres to its profession of neutrality, the duties of civil 
officers on a mission to that government, and within its territory, can- 
not possibly be ' connected with ' any ' military operations ' in the 
sense in which these words were used by Sir William Scott, as, indeed, 
is rendered quite clear by the passages already cited from his own 
judgment in the case of the Caroline." 

Now we must say, that the case does not show that the civil 
officers in question were connected with any military opera- 
tions, nor that Sir William Scott's remarks had reference to 
any military operations with which it was supposed they might 
be connected. He says of them, that they were " persons who 
were going to be employed in civil capacities in the govern- 



64 

ment of Batavia " ; and the principle of which he speaks seems 
to be the general principle on which you may wage war, annoy 
the enemy, interrupt his communications, or capture his de- 
spatches. In the case of the Caroline he says : " It is the right 
of the belligerent to intercept and cut off all communication 
between the enemy and his settlements, and, to the utmost of 
his power, to harass and disturb this connection, which it is 
one of the declared objects of the ambition of the enemy to 
preserve." 

After quoting a paragraph from Bynkershoek (^Qucest. Jur. 
Pub., Lib. I. cap. 9), his Lordship says : — 

" The principle of contraband of war is here clearly explained ; and 
it is impossible that men, or despatches, which do not come within that 
principle, can in this sense be contraband. The penalty of knowingly 
carrying contraband of war is, as Mr. Seward states, nothing less than 
the confiscation of the ship ; but it is impossible that this penalty can 
be incurred when the neutral has done no more than employ means 
usual among nations for maintaining his own proper relations with one 
of the belligerents. It is of the very essence of the definition of contra- 
band, that the articles should have a hostile, and not a neutral des- 
tination. ' Goods,' says Loi'd Stowell, ' going to a neutral port can- 
not come under the description of contraband, all goods going there 
being equally lawful. The rule respecting contraband,' he adds, ' as I 
have always understood it, is, that articles must be taken m delicto, in 
the actual prosecution of the voyage to an enemy's port.' " 

And thereupon his Lordship asks : — 

" On what just principle can it be contended that a hostile destina- 
tion is less necessary, or a neutral destination more noxious, for consti- 
tuting a contraband character in the case of public agents or despatches 
than in the case of arms and ammunition ? " 

To the question thus put we confidently answer, that the 
difference is quite material and the distinction plain. Ordi- 
narily, contraband goods and munitions of war can be made 
available to the enemy only by transportation to some place 



55 

where the enemy can put them to use or service. Usually 
this is a transportation to an enemy's port. Persons sent 
to solicit assistance, or purchase arms and ammunition, — 
whether designated as ambassadors, or commissioners, or hostile 
agents, — are made available, and perform the hostile service 
abroad ; and the destination, of course, is to the neutral coun- 
try. If, therefore, such agents can be seized at all, under any 
circumstances, they may be seized on their outward passage ; 
for that alone will prevent the hostile service which they are 
to perform. 

But, notwithstanding what is thus said by Sir William 
Scott, we suppose that there can be no doubt that a neutral 
vessel, transporting munitions of war from a neutral port to 
a neutral port, there to be delivered to a vessel of the enemy 
lying there, would be guilty of as great a violation of neutral- 
ity as if she were transporting them directly to a port of the 
belligerent. Sir William Scott did not refer to such a case, 
because the case before him did not require it ; but Earl Rus- 
sell will hardly contend, that, if the captain of the Trent had, 
at Havana, taken on board two rifled cannon and two smooth- 
bores, to be delivered on board the Nashville, at Southampton, 
the fact that the destination was to a neutral port would have 
been sufficient to save her from capture and confiscation. 
This serves to illustrate the principle. The question is, not 
what is the character of the port of destination, but whether 
the transportation is for the hostile service. If the transporta- 
tion is of nmnitions of war, and the goods are to be landed at a 
neutral port, and a subsequent disposition to be made of them, 
which has no connection with the voyage by which they are 
transported thither, then they are not contraband of war; 
although there may be a supposition that they will be there 
sold, at a round price, and will eventually reach the enemy's 
territory ; because such sale and subsequent transportation 
are not connected with the original voyage. But if the goods 



56 

were transported to the neutral port, to be there put on board 
another vessel, and carried to a port of the enemy, the last 
voyage is but a continuation of the first, and the whole is a 
single transaction. 

But we are not without authority on this point of the neu- 
tral destination, and very good English authority too. Dr. 
Phillimore, in his recent very learned work upon international 
law, recognizes the right of the belligerent to make search 
and seizure where the voyage is from one neutral port to 
another neutral port. He puts that as a case, not of exemp- 
tion, but as one where there is less to excite vigilance, and as 
one where allowance should be made for the ignorance of the 
master, or for imposition practised on him. He is speaking of 
despatches, and says : — 

" It is indeed competent to those interested with the care of the ship 
on board of which such despatches are found, to discharge themselves 
from the imputation of being concerned in the knowledge or manage- 
ment of the transaction. But the presumption is strong against the ig- 
norance of the master of the ship ; and when he has knowingly taken 
on board a packet or letter addressed to a public officer of a belligerent 
government, the plea of the insignificance of the communication, and 
its want of connection with the political objects of the war, will not 
avail him ; nor, except perhaps in an extreme case of imposition prac- 
tised upon him, will the plea of ignorance of the contents of the de- 
spatches avail him : his redress must be sought against the person whose 
agent or carrier he was. 

" With respect to such a case as might exempt the carrier of de- 
spatches from the usual penalty, it is to be observed, that, wTiere the com- 
mencement of the voyage is in a neutral country, and to terminate at a 
neutral port, or at a port to which, though not neutral, an open trade is 
allowed, in such a case there is less to excite the vigilance of the mas- 
ter ; and therefore it may be proper to make some allowance for any 
imposition which may be practised on him. But where the neutral 
master receives papers on board in a hostile port, he receives them at 
his own hazard, and cannot be heard to avow his ignorance of a -fact 



57 

with which, by due inquiry, he might have made himself acquainted." — 
3 Int. Law, 374. 

There is a suggestion in Earl Russell's despatch relating to 
the contract service of the Trent to carry Her Majesty's mails. 
It is said : — 

" It is to be further observed, that packets engaged in the postal ser- 
vice, and keeping up the regular and periodical communications be- 
tween the different countries of Europe and America, and other parts 
of the world, though, in the absence of treaty stipulations, theyftaay 
not be exempted from visit and search in time of war, nor from the 
penalties of any violation of neutrality, if proved to have been know- 
ingly committed, are still, when sailing in the ordinary and innocent 
course of their legitimate employment, which consists in the convey- 
ance of mails and passengers, entitled to peculiar favor and protection 
from all governments in whose service they are engaged. To detain, 
disturb, or interfere with them, without the very gravest cause, would 
be an act of a most noxious and injurious character, not only to a vast 
number and variety of individual and private interests, but to the pub- 
lic interests of neutral and friendly governments." 

It will be noted that Earl Russell distinctly admits that 
there is no exemption from capture by reason of this postal 
service. We adverted to this subject in our previous article, 
in which this case was partially discussed. It is quite clear 
that such a contract does not change the character of the ves- 
sel from that of a private merchant-ship to that of a national 
vessel. The bluster of Commander Williams, who occupied 
the respectable station of mail-guard, and whose conduct was 
not as respectable as his station, was entirely out of place. 
With the removal of these persons he had, so far as appears, 
nothing whatever to do, and the cabin-boy might have inter- 
fered with as much authority. Such a contract does not 
render the British government responsible for the supplies of 
the ship, nor for the conduct of the master ; nor can it alter 
the rules of international law applicable to her as a merchant- 



58 

ship, or the right of a belligerent against her as a neutral. 
She is not authorized to carry contraband of war, or exempted 
from the penalties of a violation of duty in this respect, merely 
because her owners have a contract which gives them certain 
profits for transporting the mails, and subjects them to the 
duty of the carriage. The change of the mode of commu- 
nication from that of casual and occasional transportation 
through the letter-bags of merchant vessels, to that of regular 
mail-service by similar vehicles propelled by steam, may fur- 
nish a reason why, under certain safeguards against a violation 
of neutrality, the mail-packet should be exempt from search 
and seizure ; and the treaty which gives the exemption will 
specify and provide for the safeguard. But until such treaty 
stipulation shall exist, all the concern that the belligerent has 
with such contract and transportation by the neutral is, as an 
act of comity, to exercise his belligerent right in such a man- 
ner as to cause no unnecessary interruption to the postal ser- 
vice of the neutral ; which is precisely what was done by 
Captain Wilkes in this case. And we are pleased to observe 
that Earl Russell, so far from alleging the omission to capture 
and send in the Trent as a distinct matter of grievance, or as 
furnishing specific ground of objection, says that the fact of 
the capture of the vessel being brought before a prize court, 
" although it would alter the character, would not diminish 
the gravity of the offence against the law of nations which 
would thereby be committed." 

We make this extended reference to the portion of the case 
relating to postal service, because it has been put forward by 
speech-makers and paragraphists in England, and by sympa- 
thizers in America, as a distinct ground of objection to the 
proceedings of Captain Wilkes. 

The treaty by which postal ships between the two countries 
are entitled to certain exemptions in case of war, which has 
been cited to show that the character of the Trent as a mail- 



59 

packet should have given her some protection from seizure, so 
far from furnishing such proof, is a strong circumstance to 
show the reverse of that proposition. The provision by special 
agreement for the protection, shows that the cliange in the 
mode of transacting business does not of itself furnish pro- 
tection. 

Thus far we have considered the case on its analogy to the 
capture of goods contraband of war. Earl Russell, following 
the lead of Mr. Seward, having argued it on that basis. It 
has been supposed that the legality of the capture must de- 
pend upon the question, Contraband of war or not ? But we 
are of opinion that the analogy to the case of enemy's goods 
is quite strong, and by no means to be ignored. Considered 
in reference to the principles which regulate the capture of 
such goods, some of the objections to the legality of the pro- 
ceeding vanish at once. It seems necessary only to establish 
the hostile character of the persons at the time of the capture. 
In this view of the case there is no longer any question as to 
the direction and termination of the voyage, as enemy's goods 
may be captured on any voyage ; and the question respecting 
the necessity of sending in the vessel must disappear, because 
the carriage of enemy's goods does not render the vessel liable 
to confiscation. There would have been no necessity for send- 
ing in the Trent for the carriage of the persons, nor in fact 
any propriety in so doing ; and an adjudication releasing the 
vessel, if she had been sent in, and requiring the captors to 
pay the costs of sending her in, could not be required. There 
would have been no good reason for libelling her. The legal 
proceedings would with more propriety have come from the 
master or owners, to procure the payment of expenses. 

In the view of the case we have thus presented we have 
been content to treat the act of the Trent as if it were not 
one of hostility ; but it is by no means clear that it is entitled 
to that favorable construction. Our limits, however, admon- 



60 

ish us that it is not expedient to enter upon the discussion of 
that question. 

Prom the examination we have thus made of the principles 
of international law, as existing between the United States 
and Great Britain at the time when the Trent was stopped, we 
draw these inferences and conclusions, to wit : — 

1. Regarding Messrs. Mason and Slidell as being, in the 
language of Earl Russell, quasi ambassadors, the principle 
quoted from Vattel and approved by Sir William Scott, stated 
by Dr. Phillimore and indorsed by Mr. Wheaton, that you 
may stop the ambassador of your enemy on his passage, has 
for its foundation a right to deal with him as an enemy, and 
an important officer of the enemy, who is not protected, on his 
outward passage, by his diplomatic character, even on board a 
neutral vessel ; and that you may capture him, notwithstand- 
ing he has reached a neutral port, and taken his passage from 
that place, provided he has not reached the country of his des- 
tination, the voyage from the neutral port which he has reached 
to the port of his destination being but a continuation of the 
voyage originally undertaken. 

2. If, on principle, you may capture an ambassador under 
such circumstances, a fortiori you may capture any hostile 
agent or official of the enemy, found proceeding, under like 
circumstances, on a hostile errand or mission. In fact, upon 
principle, the right to capture the latter exists, even if a right 
to stop the former were denied. 

3. The right to capture despatches being conceded, (with 
the exception of despatches from, and even to, ambassadors 
and consuls abroad,) a fortiori you may capture the bearers of 
despatches, commissioned for that purpose, being at the same 
time, in the emphatic language of Captain Wilkes, themselves 
" the embodiment of despatches." This case is not within 
the exception, there being no ministers or consuls of the 
Confederate States abroad, but agents only, who were exerting 
all possible diligence in hostility to the United States. 



61 

4. Upon the principles which regulate the transportation 
of contraband of war, in the absence of treaty stipulations, 
Mason and Slidell were as much contraband as officers and 
soldiers, and equally liable to capture. The question is not 
dependent upon the usage of wearing a uniform and a feather, 
nor upon the use of arms merely. If a character of hostility 
attaches to the person at the time as an agent or civil officer, 
he is liable to capture. The errand of Mason and Slidell was 
emphatically one of hostility, and it makes no difference 
whether the voyage was or was not from neutral port to 
neutral port, if in the prosecution of it the parties are giving 
aid to the hostilities of the enemy. 

5. Upon the principles which regulate the capture of en- 
emy's goods, which bears the closest analogy to the case of 
the capture of enemy persons, the latter are liable to capture 
wherever found on the high seas, and these persons were most 
emphatically enemies, in actual hostility at the time. 

6. In the case of the capture of persons only, the bel- 
ligerent may well waive the right to capture the neutral vessel 
in which they are found (supposing such right to exist) for 
any reason that seems sufficient to him, and the omission to 
send in the vessel cannot affect the right of capture and 
detention, because there is no judicial tribunal having juris- 
diction to try the validity of the capture, even if the vessel 
were sent in. 

Mr. Secretary Seward, in his communication to Lord Lyons, 
says : " The claim of the British government is not made in a 
discourteous manner. This government, since its first organi- 
zation, has never used more qualified language in a similar 
case." And Mr. Sumner, in his speech in the Senate, refers 
to the delivery of the parties as having been done at the 
instance of the British government, " courteously conveyed." 

While we have no desire to add anything to the honest 
indignation which has been exhibited by the great body of the 



62 

Northern people respecting the circumstances under which 
this demand was made, we must protest against these admis- 
sions, as being utterly unfounded, and therefore improper. It 
is true that the phrase of the despatch was that of the most 
studied courtesy. After a statement of facts which omitted 
all the well-known reasons which induced Captain Wilkes to 
make the capture, the conclusion is reached, and undoubtedly 
well reached on that statement of facts, that the government 
of the United States ought to offer such redress as alone 
should satisfy the British nation ; and that is, the liberation 
of the prisoners and a suitable apology for the aggression. 
" Should these terms not be offered by Mr. Seward, you will 
propose them to him." 

If this had been all, and the United States government had 
been left free to present the full statement of facts, and its 
views of the right to make the capture, the courteous tone of 
the despatch would have deserved all commendation. But 
behind all this are the instructions to Lord Lyons to leave 
Washington within a week if the demand should not be 
complied with, — most extensive naval and military prepara- 
tions in England, — the immediate embarkation of large bod- 
ies of troops for Canada, — and orders to the commanders 
of naval squadrons in the Gulf and elsewhere, the nature of 
which may be surmised, although not promulgated. To the 
inquiry made by Mr. Adams, in consequence of these prep- 
arations, whether a refusal would be followed by war, it was 
answered that the course was not determined on; and Lord 
Lyons was instructed, if an inquiry should be made by Mr. 
Seward as to the consequence of a refusal, to make an 
equally oracular reply. ' 

It was fully understood, therefore, as well as if it had ap- 
peared in the despatch itself, that any attempt to sustain the 
seizure on the principles of international law as used and 
heretofore approved by Great Britain would be at the peril of 



63 

instant war, and that Great Britain held herself in readiness 
to avail herself of her great naval strength to ravage our 
unprotected coasts, towns, and cities, in order to avenge the 
outrage of stopping the Trent for an hour or so, and taking 
from that vessel four persons, not subjects of Great Britain, 
and in whom she professed no interest, except as they were 
passengers on board a passenger packet belonging to her sub- 
jects. Really this is a somewhat strong exhibition of cour- 
tesy. If this be courtesy, " save us from our friends." 

Taking the statement of facts, as presented by Earl Russell 
himself, without qualifications, — suppose the seizure to have 
stood without justification and without excuse, — it did not 
appear to have been made by the order of the government in 
the first instance, and at the most it could have been supposed 
to be only a mistake of his rights on the part of Captain 
Wilkes. Putting the worst construction upon it, the case w.as 
not one which required instant war, or a demand with instant 
war as the possible alternative of non-compliance. It is not 
wonderful that this kind of courtesy should have elicited a 
deep feeling on the part of the people of the United States, 
which, although it has subsided, is not extinguished, nor 
likely to be entirely so within the present generation. The 
case is in singular contrast with the conduct of the United 
States, which remonstrated and negotiated respecting impress- 
ment for years and years before threatening hostilities; and 
which let the invasion of their territory and the burning 
of the Caroline remain to be discussed, years afterward, by 
Mr. Webster and Lord Ashburton. Perhaps the expenditure 
of Great Britain, incurred by these warlike preparations, 
whether it was to the extent of five or twenty millions, and 
the loss of a direct trade with the Northern States, occasioned 
by the course of the British governm'ent, to the amount of 
some twenty millions more or less, with the incidental losses 
otherwise occasioned by a fear of war on the part of her own 



64 

subjects, may be regarded as some punishment for the insane 
violence of her press and people, which drove the government 
into such an exhibition of national courtesy, and proved, that 
it is in a constitutional monarchy that the mob is the ruling" 
power, and not in a republic. 

As we have become pretty well accustomed, within the last 
year, to the manifestations of injustice toward the United 
States by a very large portion of the English press, and even 
to their openly expressed wishes that the Confederates may 
succeed in their attempts to dismember the Union, the war- 
like ebullition of the English people upon the capture of 
Mason and Slidell was less surprising to us than it would 
otherwise have been. But we must admit, that it was with no 
little astonishment that we have perused, in the columns of 
the New York Times, of January 4th, an article purporting to 
be an opinion of M. Hautefeuille upon this subject, to which 
we have already referred. Known as an extreme supporter 
of neutral, as against belligerent rights, it might have been 
expected that his views, based upon what he deemed the true 
principles of international law, would be adverse to the right 
of capture, because he has advocated, to the full extent, the 
principle, that free ships make free goods, and of course free 
persons ; and maintains that, unless the ship is let out to the 
belligerent for the purposes of the transportation, there is no 
violation of neutrality. Rejecting, as he does, the British de- 
cisions as authority, he himself cannot be regarded as authority 
on the questions at issue, and the expression of an opinion by 
him, adverse to the proceedings of Captain Wilkes, if put forth 
in terms of ordinary courtesy, would not have called for special 
remark. But the tone of this article and the animus exhib- 
ited in it are such that we hesitated respecting its authen- 
ticity ; and it is only upon assurances that no doubt exists on 
that point that we feel at liberty to speak of it, and its author, 
as we had intended to do, according to its and his merits, or 
rather demerits. 



65 

We have not space, however, at the present time to do jus- 
tice to the subject, and it may be that we shall not consider 
it of sufficient importance to advert to it hereafter. We close, 
therefore, with a few short extracts, and a single remark. 

" President Lincoln affirms that there is no Southern Confederation, 
— that there are only citizens of the United States in rebellion against 
legitimate authority ; whence he concludes that he is engaged in chas- 
tising — in reducing to subjection — rebels, but that there is no war. 
It is in order to effect this chastisement that he, the representative of 
legitimate power, declares all ports of the Southern States closed to for- 
eign commerce, and that he decrees the confiscation of all vessels found 
guilty of having attempted to violate the law made by the territorial 
sovereign. Thus, it is not for having violated a blockade, it is for hav- 
ing disobeyed a custom law, that neutral vessels have been condemned. 
There are, therefore, no belhgerents, but only, on the one hand, rebels, 
and on the other hand, a legal power, resolved, by mere force, to bring 
them back to their obedience. It is in the character of rebels that 
Messrs. Slidell and Mason have been seized. This simply amounts to 
saying that rebels may be seized and arrested wherever they shall be 
found, even on board a foreign vessel, or, in other words, in a foreign 

territory 

• " If, then, there be no war, if the Americans be not beUigerents, the 
act perpetrated by the commander of the San Jacinto against an Eng- 
lish vessel is an outrage committed against the independence of the Brit- 
ish flag ; it is an act of downright piracy, for which the perpetrator, if 
he acted without the special orders of his government, should be made 
responsible to the tribunals, but of which the whole responsibility will 
fall on the Cabinet of Washington, if it has given instructions to that 
effect. 

" But had the Trent committed a contravention of any customs regu- 
lations? Had she disobeyed the sovereign orders of Mr. Lincoln? 
Even admitting for a moment the monstrous pretension of the Presi- 
dent of the Northern States, we have no hesitation in replying in the 
negative 

" Therefore, from this point of view, as well as from others, the act 
committed by the commander of the American frigate, the San Jacinto, 
9 



66 

is opposed to the most elementary and the most important principles of 
maritime international law. It constitutes an aggression on the liberty 
of the seas, and an audacious outrage on the English flag. 

" What motives, what excuses, can the Northern Americans allege to. 
we will not say justify, but even to explain this outrage? 

" Mr. Lincoln Avould do well to reflect, that neither France nor the 
other powers would tolerate the perpetration of such outrages on the 
persons of their subjects ; nor would they, without demanding full satis- 
faction, endure the insolence and brutality too common to certain Amer- 
ican officers in the exercise of their rights 

" The Northern Americans should beware of calculating on the too 
great longanimity shown towards them by England of late years, or 
supposing that this Trent business will be settled in their favor, like 
that of the Island of San Juan, and so many others. Times are 
changed. The United States were lately the exclusive holders of an 
article indispensable to the commerce, the industry, and, consequently, 
the prosperity, of Great Britain. Cotton weighed immensely in all the 
decisions of the English Cabinet. Now the United States no longer 
possess cotton, — the precious article is in the hands of the Southern 
Confederation. The interests of England naturally lead her in the di- 
rection of the cotton producers, and assuredly this business of the 
Trent, if not settled by ample satisfaction, is of such a character as to 
lead England to take the step which in all probability she would not 
have done so soon." 

It seems quite clear that this opinion must have been ob- 
tained through Confederate instrumentality ; and it was prob- 
ably paid for in something much better than the bonds of the 
Confederate States. 



LIBRftRY OF CONGRESS 



HilllllllHIiilllllliiilliillll, 
013 425 307 1 



LIBRARY OF CONGRESS 



013 425 307 1 



